International Law 12 Notes

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International law 1&2 notes
International Trade Law (Uganda Christian University)
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Page | 1 INTERNATIONAL LAW 1 & 2

EXAMINATION PREPARATION
1. JURISDICTION PRIVILEGES AND IMMUNITIES:

State sovereignty and equality are the foundational principles of internationallaw and protect
each state’s jurisdictional powers from interference by other states. To what extent, however,
does international law recognizeand protect the exercise of jurisdiction by states, and to what
extentare limitations imposed on the power of states by virtue of their interactionand
participation in the international system?
The International Court of Justice in the Arrest Warrant case consideredthe ability of a Belgian
judge to exercise criminal jurisdictionby issuing an international arrest warrant against the then
Minister for foreign Affairs of the Democratic Republic of the Congo (DRC) foralleged war
crimes and crimes against humanity.1The acts in questiondid not occur in Belgium, nor was any
Belgian national a victim. The DRCargued that Belgium had no jurisdiction to issue the warrant,
as there wasno connection between the alleged acts and that state, and that even ifthere were
jurisdiction Foreign Minister Yerodia was protected by diplomatic immunity. This case has
become something of a modern symbol of the tension between the limits on jurisdiction designed
to protect a sovereign state from external interference (what might be considered the ‘old’
international law) on the one hand, and the extent to which jurisdiction might extend across
sovereign borders to punish heinous international crimes by state agents and officials (the ‘new’
international law) on theother.
2. TYPES OF JURISDICTION:
1Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo vBelgium) (Judgment)
[2002] ICJ Rep 3.2/ Malcolm N. Shaw, International Law (Cambridge; New York: Cambridge
University Press, 2008, 6th edn), 647.
BACHELORS OF LAW 3 RD YEAR

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PRESCRIPTION
Page | 2 ANDENFORCEMENT
Prescriptive Jurisdiction
Prescriptive, or legislative, jurisdiction describes the competence of states to create norms,
recognized as valid by international law. This poweris binding within a state’s territory and,
under certain circumstances,beyond. National law may cover any subject matter, but in certain
areasa state has exclusive jurisdiction that may not be interfered with by otherstates. A state may
not attempt to alter the legislative, judicial or administrativeframework of a foreign state by so
legislating. While this wouldbe ineffective, as the legislating state would have no way to enforce
its‘reforms’, the mere act of legislating would amount to an interference withthe subject state’s
sovereignty.
This principle extends to other sovereign prerogatives, being thoserights available only to the
state and not private individuals, such as thelevying of taxes. These powers are validly
recognized by international lawwhen exercised in relation to local and foreign nationals, where
there is a‘real link’ to the territorial state. This link could be the nationality or stateof domicile of
the taxpayer, or the location or subject of the transaction.However, in other contexts, what
suffices to establish this connection may differ.
CIVIL AND CRIMINAL JURISDICTION

The question of whether international law treats civil as opposed to criminaljurisdiction
differently, in cases involving an international element, isa matter of dispute. It is clear that
diplomatic protest is more frequentlyraised with regard to the excessive exercise of criminal
jurisdiction. Civiljurisdiction, on the other hand, is frequently exercised in cases that havelimited
connection with the forum state, and only limited diplomaticobjections are raised. Indeed, where
objection is taken, it almost always relates not to the exercise of jurisdiction but to some
ancillary issue. If the absence of protest is taken to reflect the permissive nature of international
law in the area, then significant limitations on the exercise of civil jurisdiction
are not apparent.

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Common law
Page | 3courts premise civil jurisdiction on the proper service of legal process, which
necessitates either the defendant’s presence in the territory of the forum, or the defendant’s
voluntary submission to the court’sjurisdiction. The duration of stay in the territory is not
relevant, so longas service is affected within that period. While courts may stay proceedings
where their continuation would be unjust, the fact that a defendantis a foreign national only
temporarily within the jurisdiction is not perse a source of injustice. In the United States, this has
been extended toinclude use of the notion of ‘transaction of business’ within the
forumterritory,such that a person sending a letter through the jurisdiction, flyingover it, or having
previously held a meeting in it, may be subject to a UScourt’s jurisdiction.
Criminal, like civil, jurisdiction is primarily based on territory. It maybe exercised over foreign
nationals who are within the forum territorywith regard to acts committed there. Nationals of the
forum state maybe subject to adjudicatory jurisdiction while within the territory for actsdone,
both at home and abroad. However, unilateral enforcement may only be conducted when the off
ender returns home. Any exercise of official jurisdiction on the territory of another sovereign
state, without its consent, amounts to interference with that state’s sovereignty and is prohibited
by international law. Exercising enforcement and adjudication jurisdiction over foreign nationals
for acts committed abroad is permitted only in certain limited circumstances, as will be seen in
the following section.
Territorial Principle
The principle that the domestic courts of the state in which a crime is committed have
jurisdiction over that crime is universally accepted, even where the accused may be a foreign
national. This reflects the exclusivity of sovereignty within the state’s territorial limits (land, sea
and air), and its responsibility for maintaining order. As such, there is a clear presumption
In favor of the jurisdiction of the territorial state, which also reflects the fact that in the great
majority of cases the territorial state is the most convenient forum, given that the accused,
witnesses, evidence and victims will almost always be located there.

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There are
Pagetwo
| 4 possible applications of territorial jurisdiction, referred to as ‘subjective’ and
‘objective’. The ‘subjective’ application of territorial jurisdiction grants jurisdiction, where a
crime is commenced within the territorial state but completed in another, to the state in which the
conduct was initiated. For example, crimes like drug trafficking frequently occur across national
frontiers, and many preparatory acts (such as conspiracy) may be carried out in one state before
the principal offence (sale or supply) is committed in another state. Under this principle, the first
state has jurisdiction notwithstanding the fact that the offence is completed or consummated
abroad. Of course, the second state would also be able to validly prosecute, and which state
ultimately does so will (usually) depend on the location of the defendant. While there is no
obligation in such scenario for the first state to exercise its jurisdiction (at least in customary
International law), where the exercise of such jurisdiction by it is necessary to combat
transnational or international crime, a number of treaties (and possibly customary international
law) might give rise to an obligation omits part to either prosecute, or to extradite the accused to
another state to-do so.
The ‘objective’ application of territorial sovereignty refers to the exercise of jurisdiction by a

state where the effects of a crime are felt, even though the crime (or at least its initiation or
substantial elements of it) is committed outside its territory. For example, a fraudulent letter
posted by the defendant in England, to the victim in Germany, may be tried in Germany. This
application of territorial sovereignty was considered by the Permanent Court of International
Justice in the landmark Lotuscase.In that case, a French steamer (the SS Lotus) collided with a
Turkish collier (the Boz-Kourt), sinking and killing eight people. When theLotus reached port, in
Turkey, the French officer of the watch was arrested and charged with manslaughter. France
protested that Turkey had no jurisdiction to try its national in this way. The majority judgment
considered that it was axiomatic to an international system of independent states that ‘failing the
existence of some permissive rule to the contrary state.
The court considered, however, that it did not follow that ‘international law prevents a state from
exercising jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad, and in which it cannot rely on some permissive rule of international law’.

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Having Page
once| stated
5 this principle, however, the majority went on to determine that the offence
took place on board a Turkish ship which, forth purposes of determining jurisdiction, was to be
considered Turkish territory. Turkey did have jurisdiction to try the French officer of the watch
once he was in Turkey, on the basis of the objective territoriality principle. The crime originated
in France, or rather on board the French vessel, but because a ‘constituent element [of the crime],
and more especially its effects’ occurred on the Turkish collier, which amounted to Turkish
territory, the crime was ‘nevertheless to be regarded as having been committed in the national
territory’ of the forum state. This statement of the law has-been criticized as permitting too broad
an exercise of jurisdiction. Some states ‘stretch’ this doctrine by means of the legal fiction of the
continuing offence, to permit prosecution for example, for theft when a thief, having stolen
goods in one state, crosses a border while still in possession of the stolen goods, a constituent
element of the crime supposedly continuing while the goods are in his or her possession. Other
states prosecute where effects only are felt in that state. Lakehurst argues that as state practice is
so inconsistent in the application of the constituent element rule, the effects doctrine must be
preferred, but is in itself too broad. He proposes limiting it to only effects felt ‘directly’ or most
‘substantially’ by the state seeking to exercise jurisdiction. This, he suggests, is the only rule
compatible with decided cases, and prevents excessive claims of jurisdiction.
Since the Lotus case, the subjective and objective territoriality principles have permitted states to
exercise jurisdiction over people, property and events, where a constituent element of the cause
of action occurs within their territory or the direct or substantial effects of the events are felt
there. Where there may be competing claims by states over jurisdiction, regard will be hard to
the degree of connection a state has in relation tithe matter, although it seems obvious that the
exercise of enforcement jurisdiction will depend largely on having custody of the accused.
With the exception of the territorial principle, all other bases of jurisdiction are extra territorial in
that they permit states to legislate with respect to persons, property and events occurring outside
of their territory. Thesis true even where they must wait for the presence of the defendant within
Their territory to exercise enforcement jurisdiction. While the nationality principle in this context
is relatively uncontroversial, contention can arisen determining nationality, especially with
regard to corporations and subsidiary companies. The United States has exercised enforcement

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jurisdiction
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| 6 banks based in the US and their subsidiaries abroad, requiring them to freeze all
Iranian assets in dollar-denominated accounts. Similar instances of extraterritorial enforcement
are justified on the basis of the effects doctrine.
Nationality Principle
The nationality principle allows states to exercise jurisdiction over their nationals for acts done
within or outside the state’s territory. This principle stems from the recognition that sovereign
states may legitimately impose obligations on their subjects. Nationality is, in international law,
the legal link between a state and its people. The rights and obligations of nationals vies-a-vies
their states include such things as the right to a passport and the obligation to perform military
service and pay taxes. The authority to provide and oblige these things to and of nationals is an
exercise of state jurisdiction based solely on the person’s nationality. This authority extends to
the civil and criminal jurisdiction of the state’s courts. Having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. Without such a genuine connection, international
Law will not recognize the grant of nationality.
Corporations have the nationality of the state of registration or incorporation, or that of their
main place of business. Daughter Company’s donor automatically has any connection via
nationality with their parents. Ships and aircraft carry the nationality of the state of registration,
but here too there must be a genuine connection with the state of registration. Variation exists in
the law ascribing nationality to children born on board ships and aircraft depending on their
location and state of registration, as for nationality laws generally.
States with civil law traditions are more likely than common law states to exercise jurisdiction
based on nationality, although states across all legal traditions practice this form of jurisdiction.
Jurisdiction with respect to civil and especially family law matters often depends solely on the
nationality of the parties. In common law states, this jurisdiction is generally only exercised with
regard to very serious criminal offences, or where the territorial principle is not appropriate. In
some cases this hassled to the creation of obscure offences, such as leaving the state with intent

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to commit
Pagea| crime,
7 in order to prevent nationals travelling to another jurisdiction to commit
proscribed conduct (such as dueling) where it is not prohibited.
Protective Principle
States frequently prosecute foreign nationals under the protective principle for acts done abroad,
the effects of which are prejudicial to the forum state. While this often encompasses political
acts, it also extends to acts compromising the state’s economic, immigration, currency and
national security interests. In Liangsiriprasert v Government of the United States of America,
the House of Lords considered an appeal against an extradition order against Thai national from
Hong Kong to the US. Liangsiriprasert was found to have conspired to import heroin into the US
from Thailand, but as the US had no extradition agreement covering drug trafficking, US and
Thai authorities tricked Liangsiriprasert into going to Hong Kong, where he thought he would
collect payment for the shipment, but was instead arrested. On appeal the question was whether a
court in Hong Kong had jurisdiction to try a conspiracy entered into in Thailand to import drugs
into Hong Kong, whether or not any overt acts had been done in Hong Kong. This was necessary
for the extradition order, under the principle of double criminality. The court held that an
inchoate crime, such as conspiracy, which is intended to have an effect in Hong Kong, would
bearable in Hong Kong even if no overt element of the plan was carried outing Hong Kong. This
decision reflects the protective principle in allowing states to exercise jurisdiction over acts done
outside their territory having, or even intending to have, a prejudicial impact within that state.
In Nusselein v Belgium, a Dutch soldier was convicted of aiding the enemy on the basis of acts
done both inside and outside Belgium. The Belgian Court of Cassation held that it had
jurisdiction over the soldier irrespective of where the events occurred, as they constituted ‘crimes
Against the external safety of the state’.
Similarly in Joyce v DPP, foreign national who left England fraudulently using an English
passport and subsequently broadcasted propaganda for the enemy in wartime, was found guilty
by the House of Lords of treason. It was held that as he travelled on a British passport he owed
allegiance to the Crown. Hence, even though Joyce committed the acts in another state and was

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not in Page
fact |a8 British national, the prejudice to British interests was sufficient to ground
jurisdiction under this principle.
Passive Personality Principle

The controversial passive personality principle has been accepted by different states at different
times. The principle allows states to exercise their jurisdiction over foreign nationals for actions
done outside their territory, but which affect the forum state’s nationals. The case of Cuttings
often cited to illustrate the principle. The case concerned an American who published material
defaming a Mexican in Texas. Cutting was later arrested while in Mexico and charged on the
basis that defamation was criminal in Mexico at the time, the prosecution seeking to exercise
jurisdiction based on the passive personality principle. The controversial nature of the principles
evident in the fact that Cutting did an act which was not criminal in the jurisdiction in which the
act was done. Nevertheless, he was subject to the criminal jurisdiction of another state by reason
only of the nationality of the victim. The principle was also one of several jurisdictional bases
evoked to justify prosecution of a terrorist by a US court. The passive personality principle was,
as far back as 1935, considered so controversial, and its practice so incomplete, that it was left
out of the Harvard Draft Convention. Nonetheless, it is and has been applied and is broadly
accepted as a form of jurisdiction in international law, having been applied in a recent case
before the International Court of Justice.
Universal Jurisdiction
Universal jurisdiction is a broad concept that is often used without specificity as to what
precisely is meant. The term has been employed to describe the right of and often obligation
upon – states to prosecute or extradite in respect of certain categories of crime (auto deader auto
judiciary). This form of universal jurisdiction, if that is what it is, is referred to by President
Guillaume in the Arrest Warrant case as a ‘subsidiary’ form. It tends to arise out of treaty
obligation, rather than recognition that there is a rule of customary international law obliging the
exercise of jurisdiction by states.
Voluntary’ universal jurisdiction refers to the true form, whereby astute with no territorial,
nationality or other connection with a crime may nonetheless assert jurisdiction over that crime

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and those responsible.

Page |9 The question over whether a state in such circumstances is obliged to do
so is far less clear. Although such jurisdiction is said to arise out of the nature of the criminality
as off ending the ‘laws of humanity’, state practice certainly does not support the view that
international law obliges states to exercisesuch jurisdiction.Crimes attracting universal
jurisdiction are those considered to be offensive to the international community as a whole, and
are generallydescribed as off ending humanity itself or the laws of nations. The crimesgenerally
referred to as giving rise to universal jurisdiction include piracy,genocide, crimes against
humanity and war crimes, torture and slavery.Neither customary nor conventional international
law providing for universaljurisdiction permits interference in another state’s sovereignty
inapprehending an accused. This fact demonstrates the limits of universaljurisdiction; while
jurisdiction may be prescribed, enforcement may bevery much another matter. The different
forms of universal jurisdictionwill now be examined, as will some practical implications of its
application(the illegal apprehension of suspects and its consequences and the UnitedStates under
the Alien Tort Claims Act of 1789).
True universal jurisdiction

The crimes to which universal jurisdiction is said to attach include piracy,genocide, crimes
against humanity, war crimes, torture and slavery. Other offences, including hijacking, apartheid
and even drug trafficking, havealso been considered to give rise to universal jurisdiction,
although evidencedoes not appear to support the extension under customary internationallaw of
the universality principle to these broader categories of crime.A case of potentially great
importance in the area of universal jurisdictionwas the Arrest Warrant case before the
International Court of Justicein 2002. In 1993, Belgian courts were given jurisdiction by
nationallegislation to exercise universal jurisdiction in trying charges of warcrimes, crimes
against humanity and genocide. Pursuant to this legislation,in 2000, a warrant was issued by
Belgian authorities for the arrestof Abdoulaye Yerodia Ndombasi, the then Minister of Foreign
Affairs ofthe Democratic People’s Republic of the Congo (DRC). The Court wasinitially asked
by the DRC to consider (1) whether Belgium acted unlawfullyby legislating and issuing an arrest
warrant for another state’s incumbentForeign Minister, for crimes committed by him within his
countryand with no connection whatever with Belgium’s territory, its nationals

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(as perpetrator
Page | 10or victim), and (2) whether Foreign Minister Yerodiawas protected by the doctrine
of sovereign immunity. Unfortunately,the parties and the Court agreed to resolve the matter on
the question ofimmunity alone, rejecting the opportunity to clarify the position of
universaljurisdiction in international law. As rightly noted in a joint SeparateOpinion, the
resolution of the question of immunity cannot properly beresolved without also addressing
jurisdiction – it is after all immunity from jurisdiction.
The story of Belgium’s endeavors to extend application of the universalityprinciple in its

jurisdiction is perhaps indicative of the currentstate of the principle, and its complex
interrelationship with internationalpower politics. Having boldly amended its laws to enable the
prosecutionof war crimes, crimes against humanity and genocide exercisinguniversal
jurisdiction, and having a system that allowed victims to initiatecriminal complaints before an
investigating judge, Belgium tried andconvicted four Rwandans for the genocide in Rwanda and
accepted complaintsagainst an extraordinary range of potential defendants, includingIsraeli
Prime Minister Ariel Sharon, Cuban President Fidel Castro andIraqi President Saddam Hussein,
among others. The diplomatic response from affected states to this increased litigation was far
from favourable,and included Israel withdrawing its ambassador in protest.As challenging as this
was, the wheels only really fell off the Belgian universaljurisdiction machine when Iraqi victims
sought to bring an actionagainst US President George H.W. Bush, Vice-President Dick
Cheneyand others for committing war crimes in the 1991 Gulf war. Overt threatsby US
Secretaries of State Colin Powell and later Donald Rumsfeld,including the refusal to fund a new
NATO headquarters in Belgium, ledto a series of amendments brought by the Belgian Prime
Minister that significantly emasculated the Belgian law, including the removal of thepartie civile
component and recognizing a wide range of immunities under international law. It is fair to say
that Belgium’s domestic experience, as well as the rulingof the International Court of Justice in
the Arrest Warrant case, has deliveredsomething of a blow to the trajectory of a true universal
jurisdiction.
2. IMMUNITY FROM JURISDICTION

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As Judges
Page Higgins,Kooijmans
| 11 and Buergenthal explained in their joint Separate Opinion inthe
Arrest Warrant case: “Immunity” is the common shorthand phrase for “immunity from
jurisdiction”. If there is no jurisdiction en principe, thenthe question of an immunity from a
jurisdiction which would otherwiseexist simply does not arise’. It is therefore important to
understand theconcept of immunity within international law in relation to the existence
of jurisdictional authority open to a state.
Origins: The Doctrine of Absolute Sovereign Immunity

State sovereignty, until relatively recently, was seen as vesting in theperson of the head of state.
As an individual from whom all the power andauthority of the state emanated, the head of state
could not be subject tothe authority of his or her own courts, nor on the principle of sovereign
equality – the courts of a foreign state. Over time, the personality of thesovereign was replaced
by the abstraction of the state, yet the principle ofsovereign equality remained and the immunity
afforded was preserved.Chief Justice Marshall in The Schooner Exchange v McFadden,
consideredthat the principle of sovereign immunity means that ‘every sovereign is understood to
waive the exercise of part of [their] complete exclusive territorial jurisdiction’. This principle
was confirmed more recently by LordBrowne-Wilkinson in Ex parte Pinochet (No. 3), when he
explained that‘the foreign state is entitled to a procedural immunity from the processesof the
forum state’, which embraces both criminal and civil process.
Sovereign immunity has its foundation in customary international law andthe fundamental
principle of sovereign equality, and has ancient roots in international law. Sovereign immunity is
based on the status of an individual. Once it isdetermined that the person is entitled to immunity,
he or she cannot besubjected to the legal system of the host state except in a few limited
exceptions.The traditional doctrine of sovereign immunity meant that an agentof a foreign state
could never be brought before the courts of anotherstate. The principle was explained in The
Parlement Belge, in whichBrett LJ considered that states had a ‘duty to respect the independence
anddignity of every other sovereign state’, and therefore eachdeclines to exercise by means of its
courts any of its territorial jurisdiction overthe person of any sovereign or ambassador of any

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other state,
Page |or
12over the publicproperty of any state which is destined to public use . . . though
such sovereign,ambassador or property be within its jurisdiction.
In applying this statement of principle, it was necessary to determinewhich entities were to be

considered sovereign states and what interests inproperty would fall within the protective scope
of the immunity.Two factors are relevant in determining the status of entities claiming
immunity. The first is that state organs need not conform to a particularmode of organization to
qualify as such. The way in which state agenciesare incorporated or otherwise organized is a
matter for the state andcourts need not examine these in determining claims of immunity.
Secondly, the issue of a certificate by the executive, showing recognitionof the statehood of the
claimant is sufficient to allow a court to determineits status as such. English courts will not look
beyond such a certificate.As states began to engage in commerce, nationalize industry and
employpeople, on a large scale in public agencies and in private capacities, outsidetheir territory,
the reasons for immunity based solely on status began tobe questioned. It no longer made sense
for foreign states to be protectedfrom liability when engaging in the same conduct as private
entities, whichcarried the full responsibility for their delicts.
The Restrictive or Qualified Sovereign Immunity Doctrine

These developments, which have occurred particularly and increasinglysince the end of the
Second World War, led in many jurisdictions tothe development of the restrictive (or qualified)
doctrine of immunity toreplace the absolute approach to sovereign immunity. The restrictive
doctrine differentiates between acts done in the capacity of a state for which immunity attaches
(jure imperii), and those acts done in a private capacity. This conception of state immunity is
based around the nature of thetransaction rather than the status of the person transacting. The
statusof the person is still important in determining who may claim immunity,but it will be
extended to cover only acta jure imperii, acts in the natureof public authority. This distinction
has formed the basis of immunitieslegislation enacted in the 1970s and 1980s in many common
law jurisdictions.

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In the Page
United States, the principle was applied in VictoryTransport Inc. v Comisaria Generalde
| 13
Abasteciementosy Transportes, acase concerning the charter of a ship by an arm of the Spanish
Ministry ofCommerce, to transport grain. The court in this case held that transportinggrain was
neither particularly political nor public, and hence did notgive rise to a claim of immunity. In the
UK, the absolute principle setout in The Parlement Belge, was definitively overturned by the
PrivyCouncil in the Philippine Admiral case, in which a foreign state was considered not to be
immune from the jurisdiction of local courts in admiraltyactions in rem with respect to state-
owned commercial vessels or cargoes.Trendtex Trading Corporation Ltd v Central Bank of
Nigeria, in whichthe Court of Appeal unanimously accepted the restrictive approach as reflecting
international practice, is now the settled position in UK law andis often cited in international and
national courts as reflecting the contemporarydoctrine of sovereign immunity. The restrictive
approach is nowenshrined in the national legislation of numerous common and civil
lawcountries, and is also reflected in certain multilateral treaties.
The Nature Test

The restrictive approach requires courts to determine whether the sovereignwas acting in its
public or private capacity in the relevant transaction,in order to ascertain whether jurisdiction is
to be affirmed or not. Initially,a number of methods were employed to make this determination.
Courts in different jurisdictions considered the nature of the relationship encompassedby the
transaction (a private contract for example), whether privateentities are capable of engaging in
the conduct, and the purpose of theconduct in their determinations on this point.It seems now to
be generally accepted that the purpose of the transactionis not relevant as to its characterization
as an act jure imperii or an actjure gestionis. The purposive approach presents difficulties as it
inevitablyinvolves a political judgment as to what is a public purpose and what is not and, as
Mitchell and Beard point out, ‘almost any act of a sovereigncan be said to have a public purpose
of some sort’. Lord Denning’s ruling in the Trendtex Trading case, in which he stated
that the purpose of a contract is irrelevant to the question of immunity. That case concerned the
supply of concrete from a Swiss company to theNigerian government for the purpose of

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constructing an army barracks.The dispute arose when the Nigerian government refused to pay
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andclaimed that the transaction was subject to sovereign immunity. The Courtheld that, while the
purpose of the contract was related to a public purpose(the building of army barracks), the
transaction was clearly in the nature ofa commercial transaction, to which immunity did not
attach. So, too, theGerman Constitutional Court, in the Empire of Iran case, stated that ‘one
should rather refer to the nature of the state transaction or the resultinglegal relationships, and not
to the motive or purpose of the state activity.
Functional immunity prevents a state from exercising jurisdiction over foreign officials for acts
carried out in the conduct of their official duties.Such acts are attributable to the state rather than
the individual. LordMcNair, considering the McLeod incident, stated the following principle:An
individual doing a hostile act authorized and ratified by the governmentof which he is a member
cannot be held individually answerable as a privatetrespasser or malefactor, but that the Act
becomes one for which the State towhich he belongs is in such a case alone responsible.
More recently, the International Criminal Tribunal for the formerYugoslavia explained functional
immunity in terms of the authority ofstates to determine their internal structure and, in particular,
to designatethe individuals acting as state agents or organs, as well as a state’s right toissue
instructions to those organs, whether operating internally or abroad,
and to provide sanctions for non-compliance. The necessary implicationof this authority is that
‘each state is entitled to claim that acts or transactionsperformed by one of its organs in its
official capacity be attributedto the state, so that the individual organ may not be held
accountable for those acts or transactions’. This protection shares the same rationalfoundation as
the foreign state immunity doctrine discussed above.Indeed, it is a corollary of the equality of
sovereign states that individualsdo not incur responsibility for actions carried out in performance
of theirfunction as state agents. Accordingly, the immunity is held by the state, not the individual.
It merely extends to embrace their conduct. As such,waiver of the immunity may be done by the
state, not the individual, andnothing prevents individual agents being tried if the sending state
waivesits immunity, irrespective of the wishes of the individual representative.
Exactly who is likely to be protected by this immunity and the extent ofit are considered below.

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The scope
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| 15
Functional immunity prevents the exercise of jurisdiction over agents andorgans of foreign states
with regard to conduct in the execution of their official duties. Conduct outside the scope of
those acts attributable to thestate is not, however, subject to immunity and may form the subject
of a legal claim. A further limitation on immunity applies where the official act is in
breach of the sending state’s international legal obligations and includesthe commission of a
serious crime under the law of the host state. In suchcircumstances, the individual may be
prosecuted or subject to punitivemeasures in addition to international legal responsibility
attaching to thesending state. This exception is illustrated by the Rainbow Warrior incident
and subsequent arbitral award. This incident concerned the blowing upof a Greenpeace ship (the
Rainbow Warrior) by French intelligence agentsduring a period of protest against French nuclear
testing in the SouthPacific case.
The ship was at the time docked in Auckland Harbour and aGreenpeace photographer was killed
in the attack, leading to the findingby a New Zealand court that France had interfered with New
Zealand’ssovereignty and its agents were guilty of, among other offences, manslaughter.The
sinking of the ship was an interference with New Zealandsovereignty in breach of international
law, occurring on the territory ofthe forum state, which involved a very serious criminal offence.
While theactions of the French agents were performed in the course of their duty as agents of
France, because the acts were a breach of France’s internationallegal obligations the agents were
not protected by functional immunity.
A second exception involves international crimes. In the Blaskic'scasebefore the ICTY, the
Appeals Chamber considered that immunity doesnot extend to conduct disclosing international
crimes, such as genocide,war crimes and crimes against humanity. The norms prohibiting
suchcrimes preclude the availability of immunity. As in the Rainbow Warriorcase, international
responsibility for international crimes will attach tothe state as well as criminal liability attaching
to the individual responsiblefor the commission of, or contribution to, these crimes. Just
asextraterritorial (including universal) jurisdiction may attach to crimes thatviolate the ‘laws of
humanity’, so too are such crimes exempt from claimsof immunity. This sentiment can be traced

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at least back
Page | 16 to the diplomaticprotest by the French, British and Russian governments
condemningthe massive and widespread deportation and extermination of over one
million Christian Armenians by the Ottoman government in 1915.
In view of these new crimes of Turkey against humanity and civilisation, theAllied governments
announce publicly to the Sublime Porte that they willhold personally responsible for these crimes
all members of the OttomanGovernment and those of their agents who are implicated in such
massacres. As we shall see, however, the personal or status immunities, particularlyin relation to
heads of state and sitting foreign ministers, in some circumTwo of the agents, Major Mafart and
Captain Prieur, were subsequentlyarrested in New Zealand and, having pleaded guilty to charges
of manslaughterand criminal damage, were sentenced by a New Zealand court to ten years’
imprisonmentstances extend even to the protection of these offices from prosecution in relation
to such heinous offences. The specific immunities of heads of state, other senior officials and
diplomatsare personal and will depend on their status. These are discussedbelow.
Personal status immunity

Heads of states and governments, and senior government officials such asforeign ministers and
diplomatic staff , are immune from the exercise ofstate jurisdiction with regard to the conduct of
their official functions asagents of their state, as discussed above. In addition, certain officials
enjoylimited immunity with respect to private conduct, the premises where they carry out their
official functions and their private residences. The immunityhere is based on the need to prevent
interference with the official’sfunctions – ne impediatur offi cium. Hence it is necessary to
protect the official’s private life by rendering private acts and property immune or inviolable. In
this way, as the International Court of Justice has unequivocallystated, certain officials of a state
(at least heads of state, heads ofgovernment and foreign affairs ministers) enjoy complete and
inviolableimmunity from all acts, public or private, while they are in office.

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This immunity
Page | 17 attaches to the person even for acts committed prior to the taking of office, as the
purpose of the immunity is to enable a state to exercise its official functions (through the person
of the senior governmentagent) unfettered by the exercise of jurisdiction of foreign courts.
Unlike functional immunities, personal immunities extend even toprotection from prosecution
for crimes under national and internationallaw. In the Arrest Warrant case, the majority of the
International Courtof Justice held that there was no exception to the personal immunity of
aserving foreign minister that would permit a foreign state to prosecute eveninternational crimes,
such as crimes against humanity or war crimes.The decision drew considerable criticism (from
scholars as well as fromjudges of the Court who dissented or provided Separate Opinions), both
for its lack of legal coherence and for the message that it sent about theimpunity of state leaders
who commit the most heinous crimes against their own people. The majority considered that
immunity did notamount to impunity, as various jurisdictional possibilities existed for his
prosecution:
Despite this, as Judges Higgins, Buergenthal and Kooijmans point out,the likelihood of any of
these conditions being met was rather remote, andwould not prevent impunity in practice.The
importance of diplomaticrelations in international law cannot be overstated. The role ofdiplomats
as representatives of their state is critical to the functioning ofinternational law and relations,
whether between friendly or hostile states,in times of peace and in armed conflict. Diplomatic
immunities, necessaryto ensure the integrity of the foreign state’s agents and property.
Diplomatic immunity for the most part covers the functions, property andconduct of a state’s
diplomatic agents. These prevent interference with theas well as public life of diplomatic staff
and so ensure they are ableto carry out their mission – ne impediatur legatio. As such, the
immunitiesare extended to family members forming part of the household, who arenot nationals
of the host state.
As in the case of the other forms of immunity discussed, it does notattach to the individual but is
rather an extension of the sovereignty of thesending state. That state has the power to waive or
maintain that immunity,as it is for that state’s benefit, not that of the individual to whom it

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attaches.
PageDiplomatic
| 18 personnel are immune, subject to exceptions identified in the Vienna
Convention, from criminal jurisdiction and powers ofarrest and detention. The host state can, of
course, declare a diplomatpersona non grata and require the sending state remove him or her.
This reflects the fact that there is no right of legation and all diplomatic relationsare based on
consent. If the sending state does not remove itsrepresentative within a reasonable time, the host
state may cease to recognizethe diplomat as part of the mission, and act as though
diplomaticimmunity has lapsed.
Civil jurisdiction may be exercised over diplomatic staff only to theextent that it is relevant to
their private activities. Specifically, jurisdictionmay be exercised in matters relating to real
property in the host state, not held for an official purpose, succession, and any professional or
commercial activities beyond their official role. Also, personnel have the abilityto waive their
immunity by voluntarily submitting to the jurisdiction by,for example, filing a claim in a court of
the host state. The immunity couldnot then be raised to have a counterclaim struck out.
The premises of foreign diplomatic missions are inviolable. Theyremain part of the territory of
the host state, but the authorities of thehost state may not exercise jurisdiction on the premises of
a foreigndiplomatic mission without the express consent of the head of themission. Further,
Article 22(2) makes it incumbent on the host state toprevent any disturbance of the peace or
impairment of the dignity of the mission. Similarly, the private residences of individual
diplomatic personnelare inviolable, as are any records, papers and correspondence. Theproperty
of the foreign mission may not be subject to search, requisition,or execution; the diplomatic bag,
courier, coded messages andcipher may not be ‘violated’.
Finally, diplomatic agents are immune fromany requirements to pay taxes, subject to listed
exception in Article 34.Where a diplomat is a permanent resident or national of the
receivingstate, a number of these immunities do not apply. This is in the interestof ensuring
accountability in at least one jurisdiction. The functionalimmunity element will remain as the
official remains an agent of thesending state, but Article 38(1) provides that ‘except insofar as
privilegesand immunities may be granted by the receiving state, a diplomatic agentwho is a

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national of |or19permanently resident in that state shall enjoy onlyimmunity from jurisdiction and
Page
inviolability, in respect of official acts performedin the exercise of his functions.
2. STATE RESPONSIBILITY:
Responsibility is the corollary of international law, the best proof of its existence and the most
credible measure of its effectiveness. Every legal system allocates responsibility. Norms, or
secondary rules’, operate to hold a person accountable for contravening a ‘primary’ legal
obligation. For example, a primary rule in domestic law might be the obligation not to interfere
with another person’s property. Whether the interference is attributable to a particular person and,
if so, what remedies the victim can seek are determined by the secondary rules. State
responsibility for internationally wrongful acts follows the same logic. Secondary rules in
international law are no different from primary rules in that they must be shown to derive from a
treaty, custom or general principles. As the term suggests, however, secondary rules are the rights
and obligations that apply after a primary rule has been violated.
The leading source in this area is the International Law Commission’sArticles on Responsibility
of States for Internationally Wrongful Acts(2001) (‘ILC Articles’ or ‘Articles’). The Articles have
undergone a longgestation period and they exert a powerful influence on the development
of the law.
THE ILC ARTICLES AND THE CHANGING DISCOURSE OF STATE

RESPONSIBILITY
The Long Road to Codification
Although initially plagued by a fixation with the law on the treatment of aliens, driven by the
third special Rapporteur, Roberto Ago, the ILC moved in the 1960s towards a measure of
political acceptance of the Articles by introducing the distinction between ‘primary’ and
‘secondary’ rules. Rather than codifying all rules on responsibility, the ILC decided to confine
itself to the rules of general application. The ILC Commentaries accompanying the Articles
(‘Commentaries’) describe the work as being concerned with: the general conditions under
international law for the state to be considered responsible for wrongful actions or omissions,

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and thePage
legal
| 20consequences which flow there from. The Articles do not attempt to define the
content of the international obligations, breach of which gives rise to responsibility.
The high level of abstraction and political neutrality of the Articles was a weakness, but, given
the ILC’s propensity to postpone the project over time, it was also a strength. Two topics did not
survive to codification as they were considered to be too progressive. First, a dispute settlement
mechanism for claims arising out of the Articles was suggested. The mechanism was ultimately
dropped given its unpopularity with states and the belief that a state in breach could invoke the
(necessarily lengthy) procedures to frustrate genuine countermeasures.
Secondly, Draft Article 19 of the 1996 Draft Articles defined an ‘international crime of state’ as
breach of an obligation ‘so essential for the protection of fundamental interests of thewhole’. The
proposal’s validity was strongly contested by scholars andstates, which is not surprising given
that no state practice existed for statecriminal responsibility. Also, unlike the area of individual
criminalresponsibility, the Draft Articles lacked any defined mechanisms for theattribution of
responsibility that is, proper definition of crimes, an investigativeprocess, the right to a fair trial,
punitive sanctions and a system ofrehabilitation. Indeed, some of these concepts simply do not
align withthe idea of the responsibility of an entity such as a state.
In 2000, DraftArticle 19 was deleted and replaced with the concept of jus cogens, which
is significantly less controversialSupporting the logic of the ILC’s approach, the International
Court of Justice in the Bosnian Genocide caseconsidered whether Serbia (successor state to the
Federal Republic of Yugoslavia (FRY)) was responsible for the Srebrenica genocide committed
by the Bosnian Serb insurrectional movement, Republika Srpska (RS).
The Court held that the Genocide Convention impliedly imposed state responsibility for
genocide, including complicity in genocide. In its judgment, the Court referred to the ILC’s
rejection of state crimes and expressly denied that ‘obligations and responsibilities under
international law’ can be ‘of a criminal nature.

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Page | 21
Significance of the Articles
There is no overarching multilateral treaty and most responsibility rules are customary in nature.
Although the Articles are in the form of a draft convention, the ILC decided not to subject them
to a diplomatic conference. At the same time, previous drafts had already been cited Draft
Articles on the Responsibility of States for Internationally Wrongful Acts adopted on first
reading, Report of the ILC, [1996] II(2) Yearbookof the ILC. with approval by the ICJ and
various international tribunals and the ILC felt they could exert an influence on the
crystallization of custom.
Accordingly, the General Assembly did nothing more than ‘take note’ of the Articles. Since then
the Articles have been cited as a key source bye courts and tribunals. While the Articles may, and
often are, relied upon to determine the content of rules of state responsibility, there is an
argument to be made that this is less than satisfactory. In international law devoid as it is of a
constitution, legislature and a compelling enforcement regime it is axiomatic that ‘subsidiary’
sources like the Articles (or the judicial decisions on which the Articles are primarily based) are
not interpreted and applied as formal sources of international law. Care must be taken to ensure
that the Articles do not become a substitute for an examination of state practice and opinio juris
in the determination of the content of rules of custom or general principles of international law.
INTERNATIONALLY WRONGFUL ACTS

An important principle grounded in sovereign equality is that every internationally wrongful act
of a state entails the international responsibility of that state (Article 1 of the Articles).An
internationally wrongful act is defined in Article 2 as an action or omission that (1) is attributable
to the state, and (2) constitutes a breach of an international obligation of the state.
There is no requirement that damage be caused to another state. The Articles also reaffirm the
now generally accepted principle of objective responsibility. For example, in the Caire case the

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question arose
Page | 22 as to whether Mexico was responsible for the actions of Mexican soldiers who
shot a French national after trying to extort money from him. In finding Mexico responsible, the
French–Mexican Claims Commission applied the principle of objective responsibility, defining
it as ‘the responsibility for the acts of the officials or organs of a state, which may devolve upon
it even in the absence of any “fault” of its own’. In its Commentary, the ILC considers that fault
may form part of the primary obligation, but there is no general (secondary) rule to that effect.
Article 3 of the Articles further provides that the characterization of an act as internationally
wrongful is not affected by its characterization in internal law. This reflects the basic principle
discussed in Chapter 3 that a state may not legislate away its international obligations or plead
insufficiency of its internal law.
THE RULES OF ATTRIBUTION

A state is internationally responsible if a breach of a primary obligation is attributed it.
Attribution, or imputing an act to a state, is thus a necessary prerequisite for responsibility to
accrue to that state.
State Organs
The conduct of any state organ shall be considered an act of the state, whether the organ
exercises legislative, executive, judicial or any other function, whatever position it holds in the
organization of the state, and whatever its character as an organ of the central government or of a
territorial unit of the state (Article 4 of the Articles). An organ includes any person or entity
which has that status in accordance with the internal
law of the state, although this definition is not exhaustive. An international court will consider
all the circumstances to determine whether a person not classified as an organ under internal law
is, in truth, part of the state apparatus. The fact that an organ of an autonomous government in a
federation the wrongful act does not absolve the state of responsibility. An example of breach by
the judiciary is where it commits a denial of justice in relation to a foreign national. Further, a
breach by the legislature may occur if it fails to honour the state’s treaty commitment to pass
certain legislation.

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In the Page
absence
| 23 of a specific commitment, legislation must typically be acted upon for state
responsibility to arise. However, in Prosecutor vFurundžija, the ICTY stated: In the case of
torture, the mere fact of keeping in force or passing legislation contrary to the international
prohibition of torture generates international State responsibility. The value of freedom from
torture is so great that it becomes imperative to preclude any national legislative act authorizing
or condoning torture. Whether legislation gives rise to state responsibility will therefore depend
upon the object and purpose of the primary rule in question.
Governmental Authority
Actions of persons who are not state organs will be attributed to the state if they are empowered
to exercise elements of governmental authority and they act in that capacity in the particular
instance (Article 5 of the Articles).Two elements must be satisfied: that the power exercised is of
a governmental nature, and that the entity was empowered to exercise it. As to the former,
international case law suggests that two enquiries again are relevant. The first enquiry is whether
there is a high level of governmentcontrol of the entity. In the case of a company, a rebuttable
presumption of governmental authority arises where the state controls the voting power of the
company. The second enquiry is whether the functions being exercised are ‘typically’ or
‘essentially’ state functions. In Oil Field of Texas,Inc. v Iran, the Iran-United States Claims
Tribunal had to decide whether the National Iranian Oil Company (NIOC) was exercising
governmental functions in the context of breaches by an associated company of agreements with
an American company for the lease of petroleum exploration and drilling equipment. The
Tribunal found NIOC’s breaches attributableto Iran as Iran was the company’s sole shareholder
and NIOC was established in order to exercise the ownership right of the Iranian nation in the oil
and gas resources.
The second element of Article 5 is that the entity was ‘empowered by law’ to exercise those
functions. This requirement shields the state from responsibility where it has not appointed the
entity to the functions it is purportedly exercising. Acts of an organ or an entity empowered to
exercise governmental authority that exceed their authority or contravene their instructions will

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still bePage
considered
| 24 an act of the state if the entity acts in the capacity of a state entity (Article 7).
In the Union Bridge Company case a British railway official confiscated neutral property
believing it to belong to a belligerent.
The Tribunal held that: liability is not affected either by the fact that he did so under a mistake as
to the character and ownership of the material or that it was a time of pressure and confusion
caused by war, or by the fact . . . that there was no intention on the part of the British authorities
to appropriate the material in question.A fine distinction is, however, drawn as to when an entity
acts in a governmental or private capacity. A person may still act in a governmental capacity if
acting within the apparent limits of his or her functions. Thus, in the Caire case discussed
above, Mexico could not escape responsibility for the actions of uniformed Mexican police
officers who extorted and shot a French national, even though they were acting in excess of their
authority under Mexican law.
The Commission held that the officers ‘acted at least to all appearances as competent officials or
organs’. Conversely, the 2011 incident involving allegations of sexual assault by the then leader
of the International Monetary Fund would have occurred in an exclusively private setting and
thus would not be attributable to that international organization. Exceptionally, in the context of
international humanitarian law, acts of members of the armed forces during an armed conflict are
always attributable to the state, even though they may not have been acting in thatcapacity.
Article 9 of the Articles restates the rare situation where a person or group of persons is in fact
exercising governmental authority in the absence or default of the official authorities and in
circumstances that call for its exercise. This has relevance to failed states or the situation
immediately after a successful revolution.
Instructions, Direction or Control
The conduct of a person or group of persons who are neither an organ of the state nor an entity
vested with governmental authority may still be attributed to the state where they are in fact
acting on the instructions, or under the direction or control of, the state (Article 8). This restates
what under customary international law are two distinct elements: (1) persons. This distinction

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also bedevils the area of state immunity ratione materiae acting on the instructions of the state;
Page | 25
or (2) under the direction or control of the state.
The leading ICJ decision is the Nicaragua case, in which Nicaragua alleged that the United
States had violated the prohibition against the use of force by mining Nicaraguan waters and
providing vital assistance to an insurrectional movement against the Nicaraguan government.
Although the mine laying was clearly attributable to the United States as acts of state organs (that
state’s armed forces), the ICJ found that breaches of international humanitarian law by the rebel
contras were not attributable. First, despite finding that the United States largely financed,
trained, equipped, armed and organized the contras, the Court found that the contras werenot in
fact organs of the United States or acting under the instructions of the United States. The Court
then considered direction and control. What would have to be proved is that the United States
had ‘effective control’ of the military and paramilitary operations ‘in the course of which
the alleged violations occurred’ and that it ‘directed and enforced’ those violations.
This test for direction and control was subsequently challenged by the ICTY Appeals Chamber in
Prosecutor v Tadić, which concerned an appeal against conviction for breaches of international
humanitarian law committed during the Bosnian War. The ICTY had to decide whether the
‘grave breaches’ regime in the Geneva Conventions applied – that is, whether the Bosnian Serb
insurrection movement, RS, ‘belonged to’ the Federal Republic of Yugoslavia. Instead of
applying the ‘effective test, the Tribunal considered that the test was at variance with
judicial and state practice and was not consonant with the logic of state responsibility.
The Tribunal formulated its own test. Where unorganized individuals are concerned, the
‘effective control’ test would apply, but where individuals make up an organized and
hierarchically structured group, such as a military unit or armed bands of rebels, the test is one
of ‘overall control’. Mere financing, training, equipping or providing operational support to the
group would not suffice, but the conduct will be attributable if the state ‘has a role in organizing,
coordinating or planning the military actions of the military group’.

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The ILC in|its

Page 26 Commentary to the Articles took the view that Tadić should be confined to the
threshold question in international humanitarianlaw of whether an international armed conflict
exists. This view wasvindicated, as far as the ICJ is concerned, by the Bosnian Genocide case,
which expressly reaffirmed the Nicaragua test. However, the Bosnian Genocide case failed to
grapple convincingly with the issue of directionor control. The ICJ made no eff ort to engage
with the considerable statepractice and judicial decisions cited by the ICTY. It also arguably
turnedthe clock back to Cold War-era international law. Nicaragua was, asTravalio and
Altenburg put it:decided in the context of a largely bipolar world, in which the United States
and the former Soviet Union had fought and were fighting ‘proxy wars’ of varying intensities
throughout the world. To hold that both the United States and the Soviet Union had engaged in
armed attacks whenever groups that they supported did so would have obviously created a far
more dangerous world. One of the contemporary implications of the ICJ’s ‘effective control’ test
is to make it much more difficult to hold states accountable for the use of mercenaries and
private military firms.
Adoption and Insurrection Movements

Another avenue of attribution is where a state acknowledges and adopts conduct as its own
(Article 11 of the Articles). In the Tehran Hostages case, Iranian militants seized the United
States Embassy in Tehran and held the consular and diplomatic staff hostage. The Iranian
government’s failure to protect the United States mission, and its passive acceptance of the
situation after the attack, violated diplomatic law.
It was only after the Iranian government eventually publicly adopted the militants’ activities as
official policy that this ‘translated continuing occupation of the Embassy and detention of the
hostages into acts of that State’, as the militants ‘had now become agents of the Iranian State for
whose acts the State itself was internationally responsible’. It should be noted that mere
support or endorsement will not suffice the conduct must be adopted as the state’s own.
The situation of insurrection movements is more complicated. The conduct of rebels, for
example in destroying alien property, is not attributed to the state if the state is not negligent in
suppressing the rebellion. This amounts to a kind of force majeure. However, if the insurrection

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is successful and the group eventually becomes the government of the state (or a new breakaway
Page | 27
state), actions of members of that group carried out in that capacity during the insurrection will
be attributed to the state (Article 10).
Derived Responsibility
Under Article 16 of the Articles, conduct will be attributed to a state where it ‘aids or assists’
another state in the commission of an internationally wrongful act and where the former knew of
the circumstances of the internationally wrongful act. The physical element of ‘aid orassist’ is
broad and would include conduct that makes it materially easier for another state to commit a
wrongful act. The mental element of ‘knowledge’ is, however, narrow and often difficult to
prove. What is required is knowledge of the ‘specific intent’ of the other state. For example, a
state must not supply arms to another state where the supplying state knows that the receiving
state will use them to commit acts of aggression. Less common is the scenario where one state
‘directs and controls’ another state in the commission of an internationally wrongful act.
This may occur, for instance, during belligerent occupation. Here, the dominant state is
responsible not because it has power to direct and control, but because of direction and control
actually exercised, with knowledge of the circumstances of the wrongful act (Article 17 of the
Articles). Similarly, a state is responsible where it coerces another state to commit a wrongful
act, with knowledge of the circumstances of the wrongful act (Article 18). Coercion amounts to
force majeure for the coerced state as a result of the use of force, severe economic pressure or
other measures forcing the coerced state to commit the wrongful act.
Lex Specialis
These general rules of attribution can be displaced by lex specialis. Currently a very topical issue
is whether a new norm of customary lexspecialis has emerged that engages state responsibility
for ‘harbouring’ or‘supporting’ terrorists. The attitude of the international community has
become extremely assertive, culminating in a series of unanimous General Assembly and
Security Council resolutions following the 11 September 2001 attacks on the United States,

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condemning those who provide ‘active or passive’ support to terrorists. Of course, one of the
Page | 28
major stumbling blocks to such a categorization is the fact that the international community
has still, after decades of negotiation, failed to agree on a definition of terrorism that excludes
(legitimate) freedom fighters.
CIRCUMSTANCES PRECLU DING WRONGFULNESS

Chapter V of Part 1 of the Articles sets out general rules for circumstances that preclude
responsibility for what would otherwise be an internationally wrongful act. There is some
doctrinal dispute about whether the circumstances precluding wrongfulness are primary or
secondary rules, although their status as generally applicable rules is settled. The circumstances
precluding wrongfulness are, by their nature, temporary when the circumstance ceases to
operate, the obligation to perform the primary rule is restored.
Article 26 states that nothing in Chapter V precludes the wrongfulness of an act that is not in
conformity with a jus cogens norm. This carefully worded savings clause avoids the doctrinal
anomaly presented by the fact that a state can consent to the use of force by, for example,
allowing another state to station troops on its territory.
Consent
Valid consent by a state to the commission of an act by another state precludes the wrongfulness
of that act in relation to the former state to the extent that the act remains within the limits of that
consent (Article 20). Consent can be express or implied. The Russian Indemnity case, concerned
a claim by Russia against Turkey for interest on a long-standing indemnity. The Permanent Court
of Arbitration held: In the relations between the Imperial Russian Government and [Turkey],
Russia therefore renounced its right to interest, since its Embassy repeatedlyaccepted without
discussion or reservation and mentioned again and again in its own diplomatic correspondence
the amount of the balance of the indemnity as identical with the amount of the balance of the
principal. Consent should emanate from authorities competent to give such consent under the
internal law of the state, although ostensible authority mightsuffice in an appropriate case.

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The Savarkararbitration
Page | 29 illustrates the flexibility of this rule. The case concerned the
transportation of a prisoner by ship to British India where he was to face trial. While the ship was
docked in Marseilles harbour, the prisoner escaped and swam ashore, where he was seized by
a French gendarme who, with the assistance of members of the British crew, brought the fugitive
back. The Permanent Court of Arbitration held that French sovereignty had not been violated, as
all parties had acted in good faith and the British officials were entitled to regard the behavior of
the gendarme as valid consent to their actions in the circumstances.
Self-defence
The wrongfulness of an act of a state is precluded if the act constitutes a lawful measure of self-
defence taken in conformity with the UN Charter (Article 21).
Force majeure
Force majeure applies when an act is carried out in response to the occurrence of irresistible
force or of an unforeseen event, beyond the control of the state, making it materially impossible
in the circumstances to perform the obligation. A state cannot invoke force majeure if the
situation was caused, either alone or in combination with other factors, by the conductof the state
or if it has assumed the risk (Article 23 of the Articles). Force majeure can arise from purely
natural causes, such as bad weather forcing the diversion of an aircraft onto another state’s
territory, or from human causes outside the state’s control, such as the conduct of insurrection
movements. Similar to the cognate concept of supervening impossibility of performance in the
law of treaties, the fact that performance is rendered more difficult because of an economic
crisis, for example does not excuse non-performance.
Distress
The wrongfulness of an act of a state is precluded if the author of the act has no other reasonable
way, in a situation of distress, of saving the author’s life or the lives of those entrusted to the
author’s care. Distress cannot be invoked if the situation is caused, either alone or in combination

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with other
Page |factors,
30 by the conduct of the invoking state, or if the act is likely to create a
comparable or greater peril (Article 24). It is sufficient that the author reasonably believed that
the danger existed.
In the Rainbow Warriorincident, two French agents had destroyed a ship in the port of Auckland.
By treaty, France agreed to make the prisoners serve out their sentences on the island of Hao.
However, before their sentences had expired, France repatriated them to their homeland in
contravention of its undertakings to New Zealand. The Permanent Court of Arbitration
accepted France’s argument of distress in relation to one of the agents, who had to be repatriated
to receive treatment for a serious medical condition that could threaten his life. The Court held
that France had demonstrated an ‘extreme urgency involving medical or other considerations of
an elementary nature’. By requiring a threat to life, the ILC deliberately departed from the
arbitral body’s formulation in the Rainbow Warrior case that distress had to be tightly
circumscribed to avoid abuse. It thus remains unclear whether distress is available for situations
falling short of threat to life.
Necessity
Necessity is an exceptional excuse for non-performance. Necessity cannot be invoked unless it
is the only means to safeguard an essential interest of the state against a grave and imminent
peril, and it does not impair an essential interest of the state towards which the obligation exists,
or of the international community as a whole. It is only interests of a similar gravity top
reservation of the natural environment, economic survival or the subsistence of the population
that would be ‘essential’. For example, when the Liberian supertanker Torrey Canyon ran onto
submerged rocks, Britain was justified in bombing the ship to burn up the oil that would
otherwise have threatened the British coastline. What is ‘essential’ and whether a ‘grave and
imminent peril’ existed is judged objectively, rather than from the subjective intent of the
invoking state, and breaching the primary obligation must be the only means of preventing that
peril.

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Furthermore, necessity may not be invoked if the primary rule excludes the possibility of its
Page | 31
invocation, even if implicitly. For example, in the Israeli Wall case, the ICJ held that the course
chosen by Israel for the wall was ‘necessary to obtain its security objectives’. However, in
doing so Israel would be ‘gravely infringing’ international human rights and humanitarian law,
and those infringements ‘cannot be justified by military exigencies or by the requirements of
national security or public order’
Necessity cannot be invoked if the state has contributed to the situation of necessity. In the
Hungarian Dams case, necessity was closed to Hungary as it had ‘helped’ to bring about any
situation of necessity. However, on the point of ‘grave and imminent peril’, Hungarian Dams
considered that a peril appearing in the long term might be ‘imminent’ if its occurrence was
nevertheless inevitable.
CONSEQUENCES OF BREA CH
Once it is established that an international obligation has been breached and that the breach is
attributable to a state that cannot avail itself of circumstances precluding wrongfulness, new
secondary obligations descend upon that state to make good the injury caused to the injured state
or the international community as a whole.
Cessation
The obligation of cessation is crucial to the international rule of law and the underlying principle
of pacta sunt servanda. As a wrongful act does not affect the state’s continued duty to perform
the obligation, a state is under a duty to cease its act, if it is continuing (Article 30(a) of the
Articles). In practice, cessation is often the primary remedy sought. In some cases cessation can
be indistinguishable from restitution, especially where the wrongful conduct is an omission, such
as the obligation on Iran to free the hostages in Tehran Hostages case. Cessation was
inapplicable in Rainbow Warrior, as the violated treaty obligation was no longer in force.
Assurances and Guarantees of Non-repetition

A state is also under an obligation to offer appropriate assurances and guarantees of non
repetition, if the circumstances so require (Article 30(b)). In LaGrand, the ICJ found the United

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to be|in32breach of diplomatic law in its failure to inform two condemned German prisoners
of their right to communicate with the German consulate. The Court considered that the apology
by the United States did not suffice in the circumstances. The Court noted that the United States’
commitment to implement a ‘vast and detailed programme’ to ensure future compliance was met
with ‘Germany’s request for a general assurance of non-repetition’. As to specific assurances, the
ICJ intimated that if the United States again breached the rule to the detriment of German
nationals, and if the individuals concerned were subjected to prolonged detention or sentenced to
severe penalties, ‘it would be incumbent upon the United States to allow the review and
reconsideration of the conviction and sentence’. The circumstances in which a state should offer
guarantees or assurances are exceptional, and the area is still developing. The rule is likelyto
apply only if there is a real risk that a serious breach causing substantial injury to another state
may be repeated. The choice of means of compliance will usually be left to the discretion of the
responsible state.
Reparations
In Chorzów Factory, the Permanent Court of International Justice ordered Poland to pay
reparations to Germany for wrongfully appropriating land owned by German companies in
Polish Upper Silesia. Under treaty, Poland could only apply state, and not private, property in
payment of German war reparations. The following statement is canonical.Reparation must, as
far as possible, wipe out all the consequences of the illegal act and re-establish the situation
which would, in all probability, have existed if that act had not been committed’. This is reflected
in Article 31 of the Articles, which provides for an obligation of full reparation for the injury
caused by the internationally wrongful act. The concept of ‘injury’ is broad and includes any
damage, material or moral. Insults to a state and pain and suffering are the main examples of
‘moral’ damage. In the I’m Alone case, the US-Canadian Claims Commission held that the
sinking of a Canadian registered private vessel by the United States did not cause any material
damage to Canada as it was owned and operated by American citizens. Nevertheless, the act
caused moral damage to Canada, for which the Commission recommended that the United States
apologise and pay $25,000 compensation. The Articles only partly elaborate on the principle of

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causation.
Page The
| 33 Commentary takes the view that questions of ‘directness’ and ‘remoteness of
damage’ are too flexible to be reduced to a ‘single verbal formula’.
However, under the mitigation rule in Article 39, account shall be taken of the contribution to the
injury by willful or negligent conduct of the injured state or person (for example, a national) in
relation to whom the injured state seeks reparation. The Articles do not address the situation
where the injury is partly caused by a lawful act of a third party, or questions of contribution as
between two responsible states. The way in which these general principles apply in international
law is largely unexplored. Reparation takes the form of, singly or in combination, restitution,
compensation and satisfaction.
Article 35 of the Articles restates the orthodoxy that restitution is the primary remedy for injury
caused by an internationally wrongful act. Restitution can take the form of restoration of
territory, persons or property or reversal of a juridical act. For example, in the Temple of
PreahVihear case, the ICJ required Thailand to withdraw its detachment of armed forces and
restore any objects it removed from a Cambodian temple.
In the Arrest Warrant case, Belgium was obliged to cancel an arrest warrant in breach of state
immunity. Restitution is not available to the extent that it is materially impossible (for example,
if appropriated property has been destroyed or sold to a third party), or if it involves a burden out
of all proportion to the benefitbeing sought from restitution, especially if compensation would be
a sufficient remedy. These limitations mean that in some areas, such as trade or investment,
restitution is rarely ordered. Despite these reservations , retaining restitution as a primary remedy
is justified to discourage rich states from paying for illegally obtained advantages that cannot be
so obtained by poorer states.
Compensation
To the extent that damage is not made good by restitution, the responsible state must pay
compensation for any financially assessable damage, including loss of profits (Article 36 of the
Articles). A common and flexible remedy, compensation usually comprises the ‘fair market

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of property
| 34 (appropriately valued), an award of lost profits if not too speculative, and
incidental expenses incurred.
For personal injury to a national, compensation lies for medical expenses, loss of earnings and
moral damage. These statements are very general and the measure of damages very much
depends on the primary obligation breached and the circumstances of the case. Equitable
considerations and proportionality also play a role. The flexibility of compensation is
demonstrated by the jurisprudence on nationalizations. Where a state expropriates the property of
a foreign national, there is no general customary rule of ‘prompt, adequate and effective’
compensation (the so-called ‘Hull formula’), as developing states have long considered that
expropriation during non-discriminatory large scale nationalizations for a public purpose do not
oblige states to pay full compensation. Appropriate compensation must take into account the
state’s right to permanent sovereignty over its resources.
Satisfaction
The third remedy is satisfaction (Article 37 of the Articles). Satisfaction may consist of an
acknowledgement of the breach, a formal apology or another appropriate modality, such as an
inquiry into the causes of an incident or the prosecution of individuals. Assurances and
guarantees of non-repetition may also have the effect of producing satisfaction. Sometimes the
ICJ has considered that its condemnation of the responsible state is adequate satisfaction.
Satisfaction may not be out of proportion to the injury or be humiliating. Importantly, satisfaction
may not amount to punitive damages, a remedy of deterrence not known to international law.
Satisfaction is particularly suited to remedy moral damage that is not financially assessable, as
demonstrated by the I’m Alone case discussed above.
INVOCATION OF STATE RESPONSIBILITY

Central to international law is the mechanism for holding states accountablebefore their
internationally wrongful acts. The Articles rightly defined ‘invocation’ narrowly – that is, as the
commencement of proceedings before an international court or tribunal. This ensures that states
do not have to show standing for protests or similar expressions of opinio juris.

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The Injured State

A state is entitled as an ‘injured state’ to invoke the responsibility of another state if the
obligation breached is owed to
(a) that state individually; or
(b) a group of states including that state and the breach
(i) specially affects that state; or
(ii) radically changes the position of all the other states to which the
obligation is owed with respect to the further performance of
the obligation (Article 42 of the Articles).
The Non-injured State

A ‘non-injured state’ may invoke responsibility where the obligation breached is owed to
(a) a group of states including that state, and is established for a collectiveinterest of the group
(such as collective defence), or
(b) the international community as a whole (Article 48(1) of the Articles).Article 48(1)(b)
reflects the principle that erga omnes obligations, includingbut not limited to jus cogens norms,
can be invoked by any state.In such a case, a non-injured state can seek cessation and assurances
andguarantees of non-repetition.
Under the Articles, where a state commits a serious (that is gross or systematic) breach of jus
cogens, all states have a duty to cooperate to end the breach through lawful means. This duty is
admittedly a progressive development. The other consequence is that states shall not recognize
as lawful a situation created by such a breach, nor render aid or assistance in maintaining that
situation. In the Israeli Wall case, the ICJ declared Given the character and the importance of the
rights and obligations involved,the Court is of the view that all States are under an obligation not
to recognizethe illegal situation resulting from the construction of the wall.. They are also

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an obligation
| 36 not to render aid or assistance in maintaining the situation created by such
construction.
Plurality of Injured or Responsible States

Where several states are injured by the same wrongful act, each may separatelyinvoke
responsibility. Similarly, where several states are responsiblefor the same internationally
wrongful act, the responsibility of eachmay be invoked. This rule does not apply where states
commit differentwrongful acts causing the injury, such as where one state aids or assists
another to commit a wrongful act. An important procedural rule is that responsibility cannot be
invoked if a necessary step in the claim is a finding of a wrongful act by a non-party to the
proceedings. In the East Timor case, Australia acquired certain East Timorese submarine
resources under a treaty with Indonesia. Portugal claimed that Australia had breached its erga
omnes obligation not to infringe the East Timorese people’s right to self-determination. The
Court dismissed the claim, as it would have had to pronounce on the lawfulness of Indonesia’s
claim to East Timor.
Countermeasures
International law distinguishes between reprisals (forcible unlawful responses), countermeasures
(non-forcible unlawful responses) and retorsions (unfriendly but lawful responses). Reprisals are
prohibited. However, in a decentralized system such as international law countermeasures are
tolerated as a self-help mechanism provided strict requirements are observed. An injured state
may take countermeasures that comprise nonperformance of obligations it owes to the
responsible state, provided resumption of the obligation is possible.
Thus, in the Hungarian Dams case Czechoslovakia’s irreversible step of diverting the Danube,
taken in response to Hungary’s treaty breaches, was not a lawful countermeasure. As the object
of countermeasures is to induce the responsible state to cease its wrongful conduct, they must be

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terminated
Page |as37soon as the responsible state has complied or if the dispute is pending before a
competent court or tribunal.
Secondly, Article 51 of the Articles requires countermeasures to be ‘commensurate with the

injury suffered’, in view of the gravity of the wrongful act and the importance of the rights in
question. Couched in the positive, this requirement is harder for an injured state to satisfy than
the formulation in the Air Services case, in which France wrongfully refused to allow a change
of gauge in London on Pan Am flights from the US west coast. The Arbitral Tribunal held that
the United States’ suspension of all Air France flights to Los Angeles was ‘not clearly
disproportionate’ as it had ‘some degree of equivalence with the alleged breach’.
Hence, proportionality remains an unsettled area. Before taking countermeasures, the injured
state must notify the responsible state of its decision and offer to negotiate, but it can dispense
with this requirement if urgent countermeasures are necessary to preserve its rights.
THE STATE’S DIPLOMATIC PROTECTIONOVER ITS NATURAL AND JURISTIC

PERSONS:
Following the jurisprudence of Vattel the Permanent Court ofInternational Justice stated in
Mavromattis: a State is entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have been unable to obtain
satisfaction through the ordinary channels. Following decolonization, disagreements between
states paralyzed legal development in this area. Developed states considered there was an
international minimum standard for the treatment of aliens, while developing states denied that
aliens could be treated more favourably than nationals.
Equally divisive was the question of permanent sovereignty over natural resources and whether
to jettison the fiction that the state sues on account of injury to itself. Therefore it was only in
2006 that the ILC produced, and the General Assembly took note of, its Draft Articles on
Diplomatic Protection. However, the Draft Articles deal only with theprocedural rules relating to
nationality of claims and exhaustion of local remedies.

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Some substantive
Page | 38 rules have developed. Generally, a state can freely choose to refuse entry to an
alien or set conditions on entry, including refusing them civil rights such as the right to vote.188
Expulsion, however, must not be arbitrary, discriminatory or in breach of the expelling state’s
obligations. A state may also sue for a denial of justice committed against its national the action
here is founded on the malfunctioning of the state’s judicial system.
3. PACIFIC RESOLUTION OF DISPUTES

THE LEGAL FRAMEWORK
Peaceful dispute resolution at the international level has occurred more or less formally since the
existence of international law itself. Long before the creation of the Permanent Court of
Arbitration or, indeed, the UN Charter, states engaged in the settlement of disputes through a
range of bilateral and ad hoc mechanisms. An important nineteenth-century example was the
settlement of the now famous Carolinedispute, relating to the sinking by the British of a US ship.
That event, still significant in understanding self-defence in international law, was resolved by
diplomatic exchanges between the affected states. More ancient examples of states resolving
their disputes by peaceful means can be found at least as far back as the Roman system of jus
gentium.
Of course, disputes were not always settled peacefully and, unlike the position today under the
modern UN Charter regime of collective security, there was little or no impediment under
international law to states resorting to the use of force to resolve their disputes. While it is often
said that prior to 1945 there was no universally accepted prohibition against the use of force by
states to settle disputes, there was at least some framework in place. The Hague Peace
Conferences of 1899 and 1907 were unsuccessful in preventing the Second World War, despite
the creation of an arbitral framework, a Permanent Court of International Justice and a
multilateral treaty rendering the use of force in large part unlawful (the Kellogg-Briand Pact3).
Even so, these normative developments did lend greater legitimacy to the prosecution of German
and Japanese leaders following the Second World War for the crime of aggression.

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The United Nations Charter in 1945 gave birth to a radical new international framework under
which states must never resort to armed force to settle disputes except in limited circumstances.
Article 2(4) of the UN Charter prohibits the threat or use of force by states other than in
individual or collective self-defence (Article 51). Article 2(3) provides that all members ‘shall
settle their international disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered’. Article 33(1) further obliges parties to a dispute to
seek resolution first by ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful means of their own
choice’. Article 33(2) gives the Security Council the power to call upon parties to settle disputes
by such means as those listed in Article 33(1) when it deems necessary. The Security Council
also has the power under Chapter VII to take measures to maintain or restore international peace
and security, which includes the creation of international criminal tribunals.
NON-JUDICIAL SETTLEMENT PROCEDURES(NON-BINDING)

Negotiation
Negotiation involves discussions between the disputing parties seeking to understand the
different positions they hold in order to resolve the dispute. There is generally no third party
involvement, and the negotiations are purely consensual and informal. Therefore, for
negotiations to be successful they require a measure of goodwill, flexibility and mutual
understanding between the parties. Even if a negotiation fails to resolve a dispute, it will often
assist the parties in clarifying the nature of the disagreement and the issues in dispute and in
obtaining a clearer idea of their own and each other’s positions, what they are willing to
compromise on and what it might take to resolve the dispute. Many treaties provide for
negotiation as a precondition to binding international dispute resolution. Examples
includeArticle 84 of the Vienna Convention on the Representation of States in their Relations
with United Nations Charter, Art. 39. This power was the basis of the creation of the ad hoc
International Criminal Tribunal for the former Yugoslavia and the International Criminal
Tribunal for Rwanda.

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International Organizations (1975) and Article 41 of the Convention on the Succession of States
Page | 40
in Respect of Treaties (1978). However, neither in the UN Charter nor otherwise in international
law is there any general rule that requires the exhaustion of diplomatic negotiationsas a
precondition for a matter to be referred to a court or tribunal. Nevertheless, the court or tribunal
may direct parties at the preliminary stages of the proceedings to negotiate in good faith and to
indicate certain factors to be taken into account in that negotiation process. Ultimately,there is no
obligation on states to reach agreement, only that ‘serious efforts towards that end will be
made’.8 This requires parties to ‘negotiate, bargain and in good faith attempt to reach a result
acceptable to both parties’. Examples of a breach of good faith have included unusual delays,
continued refusal to consider proposals and breaking off discussionswithout justification.
Negotiations may continue while there are other resolution processes under way, formal or
informal, and a resolution may be reached at any time.
Inquiry
Article 50 of the International Court of Justice Statute provides that the Court may ‘at any time,
entrust any individual, body, bureau, commission, or other organization that it may select, with
the task of carrying out an enquiry or giving an expert opinion’. The possibility of engaging a
formal commission of inquiry carried out by reputable observers to ascertain facts objectively
was first envisaged in the 1899 Hague Convention for the Pacific Settlement of International
Disputes.12 These provisions were revised and included in the 1907 Hague Convention
following their successful application in the DoggerBank case. This success also led to inquiry
provisions being incorporated into many treaties at the time. There has been very little use of
inquiry provisions in practice over the years, though there have been some occasions in recent
times, particularly in relation to arms control treaties.
Good Offices
Good offices is another informal means of assisting parties to resolve a dispute. This involves the
attempt by an impartial third party to influence the disputing parties to enter into negotiations.
The Security Council itself has engaged in this form of international diplomacy, often using a
recognized and respected person to negotiate with the parties towards a settlement of the dispute.

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An example
Page | of
41 this was the use by Barack Obama of former US President Bill Clinton to assist in
negotiating the release of US journalists held by North Korea in 2009, and former US President
Jimmy Carter to secure the release of an American citizen in 2010.
Another successful example was the intervention by Kofi Annan which led to an agreement
between the negotiators for President Mwai Kibaki and the opposition in the Kenyan post-
election turmoil, in which a dispute over an election in 2007 led to weeks of violence. An
unusual example was the Beagle Channeldispute in which the Pope was requested by both
parties to provide his good offices in a dispute between Argentina and Chile, and at his
suggestion both countries agreed to comply with the proposed outcome.
Perhaps one of the most impressive modern examples of good offices concerns the intractable
dispute relating to the Lockerbie incident. The problem concerned a jurisdictional dispute over
who was to try two Libyan men accused of planning and executing the infamous terrorist
attack on a Pan Am flight blown up over Lockerbie, Scotland, in December 1988. Both the US
and the UK had initiated legal proceedings against the men, whom Libya refused to transfer in
accordance with both its own extradition laws and a reading of the Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation 1971. The case went before
the ICJ which, in absurd circumstances, refused to order provisional measures.
Mediation and Conciliation

Both mediation and conciliation are open to the parties in dispute as a flexible means of dispute
resolution. A mediator facilitates negotiations between the parties, and may propose solutions to
the dispute. Therefore, the mediator will need to be well respected, accepted by all parties and
sensitive to a range of different contextual issues.Conciliation involves a third party investigation
of the basis of the dispute and submission of a report suggesting means by which a settlement
may be reached. It tends to involve elements from both inquiry and mediation. Conciliation
reports are not binding, and this differentiates themfrom arbitration. As with inquiry, conciliation
has become less popular as a method of resolving disputes.
The General Role of the United Nations

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Under Page
Article
| 42 36 of the UN Charter, the Security Council may, at any stage of a dispute,
‘recommend appropriate procedures or methods of adjustment’.21 Article 37 requires parties
who fail to resolve their differences to refer the dispute to the Security Council, and Article 38
allows for referral of disputes to the Security Council where the parties agree. Many disputes,
such as that between Argentina and Israel over the arrest of Adolf Eichmann, have been referred
to the Security Council under these provisions and this has led to a successful resolution.
However, there are differing views as to the true effectiveness of the UN as a facilitator of the
pacific settlement of disputes with some claims that ‘the line between pacific settlement and
enforcement hasblurred’
INTERNATIONAL ARBITRATION (BINDING)

Arbitration is a binding form of dispute resolution. Article 37 of the Hague Convention contains
the accepted definition of arbitration at international law: International arbitration has for its
object the settlement of disputes between States by Judges of their own choice and on the basis
of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the
Award. It can be distinguished from judicial resolution as it is normally an ad hoc body, created
specifically for the resolution of a particular dispute. In addition, the parties have greater control
over the process in that they must agree on how the case will run with regard to the issues to be
decided and, although international law is applied, the parties may agree that certain principles
be considered. The parties must also decide on how many and who the arbitrators will be.
Arbitration may arise out of a treaty provision or as a result of an ad hoc agreement. One
prominent example of international arbitration is the RainbowWarrior case. France and New
Zealand were involved in a dispute after the French military security service sank the Rainbow
Warrior ship while in Auckland Harbour in 1985. Two French secret service agents were
arrested and charged in New Zealand and then convicted for manslaughter and willful damage.
The French government eventually acknowledged that the agents acted under orders and argued
that therefore they should not be blamed. New Zealand notified France that it would bepursuing
a claim for compensation. Negotiations took place between thetwo parties over the possible
repatriation of the agents on the conditionthat they serve the rest of their sentences.

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WTO Appellate Body
The establishment of the Appellate Body of the World Trade Organization (WTO) in 1995 is
perhaps the most remarkable and effective development in international dispute resolution. It has
a binding and compulsory jurisdiction over its members. The Appellate Body is made up of
seven permanent members broadly representing the range of WTO membership. Each appeal is
heard by three members, who may then elect to uphold, modify or reverse the legal findings of
the panel which was set up to resolve the particular dispute. Appeals can only be initiated
by parties to a dispute55 and have to be based on points of law; there is no scope for the
Appellate Body to consider new issues or to re-examine evidence. Once the Appellate Body
Reports are adopted by the Dispute Settlement Body (DSB), the parties are compelled to accept
the findings
International Tribunal for the Law of the Sea
The ITLOS is a permanent intergovernmental organization established by Annex VI of the
United Nations Convention on the Law of the Sea (UNCLOS). It consists of 21 independent
members ‘of recognized competence in the field of the law of the sea’. ITLOS only has the
power to resolve disputes between states, which includes the European Community.
International Criminal Court
The International Criminal Court (ICC) was created by the Rome Statute of the International
Criminal Court (‘Rome Statute’), which came into effect on 1 July 2002, and is the world’s first
permanent international criminal court. It complements, and will soon supersede, a wide range of
modern international and hybrid war crimes tribunals, the most important of which is the
International Criminal Tribunal for the former Yugoslavia (ICTY). The ICC has jurisdiction to
prosecute some of the most serious crimes of international concern, including genocide, crimes
against humanity and war crimes, as well as the crime of aggression after 2016. Its jurisdiction is
complementary to that of national courts, which means that the Court will act only when states
themselves are unwilling or unable to investigate or prosecute. The ICC may exercise its
jurisdiction on referral by a State Party or by the Security Council, or through the prosecutor
initiating an investigation ‘proprio motu on the basis of information’ on crimes within the ICC’s
jurisdiction. In the Court’s brief history, the Prosecutor has opened investigations into six

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situations,
Page including,
| 44 most recently, the investigation into the alleged criminal acts in Libya.
Through its Art. 1; it represents the states who have transferred competence to it over matters
governed by the UNCLOS.
INTERNATIONAL COURT OF JUSTICE

The International Court of Justice, commonly known as the ‘World Court’, is the principal
judicial organ of the United Nations. It was created in 1945, succeeding the Permanent Court of
International Justice. Chapter 5 of this book examines the history of the Court, and provides an
overview of its functions. This section will consider more deeply the role played by the ICJ.
Procedure and Practice: Admissibility and Organization
Article 92 of the UN Charter provides that the ICJ is ‘the principal judicial organ of the United
Nations’, while Article 93(1) states that all members of the UN are parties to the Statute of the
International Court of Justice.76 The ICJ can be engaged in a dispute by the operation of Articles
35(1) and 36(1) of the UN Charter. Article 35(1) provides a means for a Member of the United
Nations to bring a dispute before the General Assembly or Security Council. Article 36(1) then
provides a means for the Security Council to ‘recommend appropriate procedures or methods of
adjustment, including referral to the International Court of Justice.
Role and Jurisdiction
Applicable law and general jurisdiction
In determining the relevant law that applies to a dispute, the chiefprovision to which the ICJ has
recourse is Article 38(1).89 This providesfor the now universally accepted and recognized
sources of international
Preliminary considerations
For a case to be brought before the ICJ, Article 36(2) of the Court’s Statute requires it to be a
legal dispute. If there is a question in a case as to whether or not the Court has jurisdiction, two
principles must be considered. The first is the compétence de la compétence principle, whereby
Article 36(6) of the ICJ Statute provides that, in a dispute regarding the jurisdiction of the Court
to hear a case, ‘the matter shall be settled by the decision of the Court’. There are a number of

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objections
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state may bring regarding jurisdiction, one of the most prominent being that local
remedies have not been exhausted.
Contentious jurisdiction
It is one thing for all members of the UN to be made party to the ICJ. It is another thing to say
that a state is subject to the jurisdiction of the court without that state’s consent. This would
represent what states have viewed as an impermissible step into the realm of state sovereignty
and, for that reason, Article 36(1) stipulates that, prior to any party being made subject to a
judicial determination, the parties must refer their case to the ICJ for determination. This may be
achieved in a number of ways.
Special agreements States may refer a matter to the ICJ through a special agreement
orcompromis, consenting to its jurisdiction on an ad hoc basis. Instead of merely asking the
Court to advise on the specific dispute between the two states, the special agreement allows
states to ask the Court to set out the relevant principles of international law governing the
conflict. This provides a degree of clarity and certainty with respect to a particular area of law,
which may up to that point have been murky, and helps to reduce future conflicts premised upon
similar issues. An example of this is the North Sea Continental Shelf cases, in which a dispute
arose between Germany and the Netherlands as to where the boundary for a shared continental
shelf in the North Sea should be drawn. A special agreement between Germany and the
Netherlands enabled the Court to resolve the dispute, as well as declaring the broader principles
application.
Terminating a Declaration
There are a number of reasons why a state may wish to terminate an optional clause and there are
a number of judicial views as to how this can be achieved. One view expressed by the ICJ in the
1957 Rites of Passage case was for the Court to accept the right of states to terminate or vary
their voluntary declarations of consent by simple notification, without the requirement of a notice
period. A termination of an optional clause was rejected in the Nicaragua case, where Nicaragua
made an application to the Court three days after the US withdrew its application of consent. The

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found| 46
that in determining whether a termination is valid, the principle of good faith will
play a signifi cant role. Because the US had inserted, in its declaration, a six-month notice clause
for termination, the Court held that the US was bound by that indication. In a recent example of
the successful termination of an optional clause, Australia withdrew its open ended acceptance of
consent to the Court in anticipation of proceedings to be brought by East Timor.
Provisional Measures
Article 41 of the ICJ Statute gives the Court the power to ‘indicate . . . any provisional measures
which ought to be taken to preserve the respective rights of either party’, a procedure akin to the
domestic remedy of an injunction. Article 41 also allows the court to act expeditiously so as to
prevent irreparable injury to a dispute. These measures are binding upon the relevant state.
The Court will grant provisional measures only where clear evidence of irreparable prejudice has
been provided. An example of a case in which provisional measures were granted is in
theGenocide Convention cases.
Bosnia and Herzegovina brought an action before the Court alleging breaches of the Convention
on the Prevention and Punishment of the Crime of Genocide, and requested provisional measures
to be provided by the court in order to prevent the crime of genocide being committed. The Court
granted the request, relying upon Article 9 of the Genocide Convention for jurisdiction, and
ordered Yugoslavia to ‘take all measures within its power to prevent commission of the crime of
genocide’. It is worth considering, however, that the ICJ’s decision failed to bring any practical
change, evidenced by the massacre of Srebrenica in 1995, undertaken by Yugoslavia in breach of
the ICJ’s directive. On the other hand, there have been instances where the court has not found
that an irreparable prejudice would result from failing to grant provisional measures. In the 2009
case of Questions Relating tothe Obligation to Prosecute or Extradite (Belgium v Senegal)
(currently pending before the ICJ), a request was made to have the former President of Chad
extradited to Belgium in light of a forthcoming war crimes trial. Pending the outcome of this
extradition, Belgium requested that the President immediately be transferred to Belgium. The
Court chose not to prescribe provisional measures, finding that there was no ‘real and imminent
risk that irreparable prejudice’ would result to Belgium in its efforts to ensure the trial of the

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President
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| 47 of Senegal’s assurances that it would continue to monitor and control the
President, thus ensuring his presence at trial.
Remedies and Enforcement

The most common remedy sought by states is a declaratory judgment in favor of the applicant,
stating that the respondent has breached international law. This may be combined with a
reparation request for the various losses suffered. This can include direct damage to the state
itself, as well as to citizens and property. Once a remedy has been determined, the question
then turns to enforcement. Article 59 of the ICJ provides that a decision of the court ‘has no
binding force except between the parties and in respect of that particular case’. This Article,
therefore, indicates that the decision in a particular case is binding on the parties involved in the
dispute alone, in line with the absence of stare decisis. In practice, however, decisions and
Advisory Opinions which advance the jurisprudence of international law are referenced
and used in support of subsequent decisions both by the court and other international tribunals.
Advisory Opinions
Under Article 65(1) the ICJ is granted the power to give an Advisory Opinion on ‘any legal
question at the request of whatever body may be authorized or in accordance with the Charter of
the United Nations to make such a request’. Under Article 96 of the UN Charter, the General
Assembly and Security Council may request an Advisory Opinion. The General Assembly also
has the power to authorize other organs and specialized agencies to do so. The purpose of an
Advisory Opinion is to provide guidance on the legal principles governing a particular area of
law.
4. STATE SUCCESSION:
Political entities are not immutable. They are subject to change. New states appear and old states
disappear. Federations, mergers, dissolutions and secessions take place. International law has to
incorporate such events into its general framework with the minimum of disruption and
instability. Such changes have come to the fore since the end of the Second World War and the
establishment of over 100 new, independent countries.

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Page | 48
Difficulties may result from the change in the political sovereignty over a particular territorial
entity for the purposes of international law and the world community. For instance, how far is a
new state bound by the treaties and contracts entered into by the previous sovereign of the
territory? Does nationality automatically devolve upon the inhabitants to replace that of the
predecessor? What happens to the public property of the previous sovereign, and to what extent
is the new authority liable for the debts of the old?
State succession in international law cannot be confused with succession in municipal law and
the transmission of property and so forth to the relevant heir. Other interests and concerns are
involved and the principles of state sovereignty, equality of states and non-interference prevent a
universal succession principle similar to domestic law from being adopted. Despite attempts to
assimilate Roman law views regarding the continuity of the legal personality in the estate which
falls by inheritance, this approach could not be sustained in the light of state interests and
practice. The opposing doctrine, which basically denied any transmission of rights, obligations
and property interests between the predecessor and successor sovereigns, arose in the heyday of
positivism in the nineteenth century. It manifested itself again with the rise of the decolonisation
process in the form of the ‘clean slate’ principle, under which new states acquired sovereignty
free from encumbrances created by the predecessor sovereign.
The issue of state succession can arise in a number of defined circumstances,which mirror the
ways in which political sovereignty may be acquired by, for example, decolonisation of all or
part of an existing territorial unit, dismemberment of an existing state, secession, annexation and
merger. In each of these cases a once-recognised entity disappears inwhole or in part to be
succeeded by some other authority, thus precipitating problems of transmission of rights and
obligations. However, the question of state succession does not infringe upon the normal rights
and duties of states under international law. These exist by virtue of the fundamental principles
of international law and as a consequence of sovereigntyand not as a result of transference from
the previous sovereign. The issue of state succession should also be distinguished from questions

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of succession
Page | 49of governments, particularly revolutionary succession, and consequential patterns
of recognition and responsibility.
In many cases, such problems will be dealt with by treaties, whether multilateral treaties dealing
with primarily territorial dispositions as, for example, the Treaty of St Germain, 1919, which
resolved some succession questions relating to the dissolution of the Austro-Hungarian Empire,
or bilateral agreements as between, for instance, colonial power and new state, which, however,
would not bind third states. The system of devolution agreements signed by the colonial power
with the successor, newly decolonised state, was used by, for example, the UK, France
and the Netherlands. Such agreements provided in general that all the rights and benefits,
obligations and responsibilities devolving upon the colonial power in respect of the territory in
question arising from valid international instruments, would therefore devolve upon the new
state.
This system, however, was not seen as satisfactory by many new states and several of them
resorted to unilateral declarations, providing for a transitional period during which treaties
entered into by the predecessor state would continue in force and be subject to review as to
which should be accepted and which rejected. In the case of bilateral treaties, those notsurviving
under customary law would be regarded as having terminated at the end of the period.
However, the issue of state succession in international law is particularly complex. Many of the
rules have developed in specific response to particular political changes and such changes have
not always been treated in a consistent manner by the international community.
The Arbitration Commission established by the Conference on Yugoslavia, for instance,

emphasised that ‘there are few well-established principles of international law that apply to state
succession. Application of these principles is largely to be determined case by case, though the
1978 and 1983 Vienna Conventions do offer some guidance’, while the German Federal
Supreme Court noted in the Espionage Prosecution case that ‘the problem of state succession is
one of the most disputed areas of international law’. The international aspects of succession are
governed through the rules of customary international law. There are two relevant Conventions,

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the Vienna
Page |Convention
50 on Succession of States in Respect of Treaties, 1978, which entered into
force in 1996, and the Vienna Convention on Succession of States in Respect of State Property,
Archives and Debts, 1983, which is not yet in force. However, many of the provisions contained
in these Conventions reflect existing international law.
State succession itself may be briefly defined as the replacement of one state by another in the
responsibility for the international relations of territory. However, this formulation conceals a
host of problems since there is a complex range of situations that stretches from continuity of
statehood through succession to non-succession. State succession is essentially an umbrella term
for a phenomenon occurring upon a factual change in sovereign authority over a particular
territory. In many circumstances it is unclear as to which rights and duties will flow from
one authority to the other and upon which precise basis. Much will depend upon the
circumstances of the particular case, for example whether what has occurred is a merger of two
states to form a new state; the absorption of one state into another, continuing state; a cession of
territory from one state to another; secession of part of a state to form a new state; the dissolution
or dismemberment of a state to form two or more states, or the establishment of a new state as a
result of decolonisation.
The role of recognition and acquiescence in this process is especially important. The relevant
date of succession is the date at which the successor state replaces the predecessor state in the
responsibility for the international relations of the territory to which the succession relates. This
is invariably the date of independence. However, problems may arise where successivedates of
independence arise with regard to a state that is slowly disintegrating, such as Yugoslavia. The
Yugoslav Arbitration Commission noted of all the relevant circumstances.
Continuity and succession

Questions relating to continuity and succession may be particularly difficult. Where a new entity
emerges, one has to decide whether it is a totally separate creature from its predecessor, or
whether it is a continuation of it in a slightly different form. For example, it seems to be accepted
that India is the same legal entity as British India and Pakistan is a totally new state. Yugoslavia

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was generally
Page | 51regarded as the successor state to Serbia, and Israel as a completely different being
from British mandated Palestine. Cession or secession of territory from an existing state will not
affect the continuity of the latter state, even though its territorial dimensions and population have
been diminished. Pakistan after the independence of Bangladesh is a good example of this. In
such a case, the existing state remains in being, complete with the rights and duties incumbent
upon it, save for those specifically tied to the ceded or seceded territory. Where, however, a state
is dismembered so that all of its territory falls within the territory of two or more states, these
rights and duties will be allocated as between the successor states. In deciding whether continuity
or succession has occurred with regard to one of the parties to the process, one hasto consider the
classical criteria of the creation of statehood, together with assertions as to status made by the
parties directly concerned and the attitudes adopted by third states and international
organisations.
This issue has arisen recently with regard to events concerning the Soviet Union and Yugoslavia.
In the former case, upon the demise of the USSR, the Russian Federation took the position that it
was the continuation of that state. This was asserted particularly with regard to membership of
the UN. Of great importance was the Decision of the Council of Heads of State of the
Commonwealth of Independent States on 21 December 1991 supporting Russia’s continuance of
the membership of the USSR in the UN, including permanent membership of the Security
Council, and other international organisations. Although not all of the instruments produced by
the Commonwealth of Independent States at the end of 1991 were strictly consistent with the
continuity principle, it is clear that Russia’s claim to be the continuation of the USSR (albeit
within different borders of course) was supported by the other former Republics and was
accepted by international practice. A rather special situation arose with respect to the Baltic states
(Estonia, Latvia and Lithuania), which became independent after the First World War,
but were annexed by the Soviet Union in 1940. This annexation had been refused recognition by
some states and accepted de facto but not de jure by some others. The Baltic states declared their
independence in August 1991.

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The European
Page | 52Community adopted a Declaration on 27 August 1991 welcoming ‘the restoration
of the sovereignty and independence of the Baltic states which they lost in 1941’. The
implication of this internationally accepted restoration of independence would appear to be that
these states do not constitute successor states to the former USSR and would therefore be free of
such rights and obligations as would be consequential upon such succession.
In contrast to this situation, the issue of Yugoslavia has been more complicated and tragic. The
collapse of the Socialist Federal Republic of Yugoslavia (the SFRY) took place over several
months as the various constituent republics proclaimed independence. The process was regarded
as having been completed in the view of the Arbitration Commission on Yugoslavia by the time
of its Opinion No. 8 issued on 4 July 1992. The Commission noted that a referendum had been
held in Bosnia and Herzegovina in February and March 1992 producing a majority in favor
of independence, while Serbia and Montenegro had a established ‘a new state, the “Federal
Republic of Yugoslavia”’ on 27 April 1992.
The Commission noted that the common federal bodies of the SFRY had ceased to function,
while Slovenia, Croatia and Bosnia had been recognised by the member states of the European
Community and other states and had been admitted to membership of the UN. The conclusion
was that the former SFRY had ceased to exist. This was particularly reaffirmed in Opinion No.
Nevertheless, the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to
maintain that it constituted not a new state, but the continuation of the former SFRY. This claim
was opposed by the other former republics of the SFRY and by the international community.
The Security Council, for example, in resolution 777 (1992) declared that ‘the state formerly
known as the Socialist Federal Republic of Yugoslavia has ceased to exist’ and that ‘the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership
of the former Socialist Federal Republic of Yugoslavia in the United Nations’. However, the
Yugoslav position changed in 2000 and it requested admission to the UN as a new member. The
question as to the legal status of Yugoslavia as between 1992 and 2000 remained a source of
some controversy, since its admission to the UN in 2000 could not operate retroactively.

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The International
Page | 53 Court in 2003 described this situation as sui generis and fraught with legal
difficulties,40 but in its judgment in the series of cases brought by Yugoslavia against NATO
members following the Kosovo conflict in 1999, the Court concluded that Yugoslavia had been a
a member of the UN (and thus a party to the Statute of the Court) from 1 November 2000 and
that the sui generis status of that state could not have amounted to membership of the UN.
Accordingly, while in 1996 the Court decided that Yugoslavia could appear before it in the
Genocide Convention (Bosnia v. Serbia) case, it held in 2003 that the situation as to
Yugoslavia’s status was sui generis and not without legal difficulty but finally decided in 2004
that Yugoslavia could not bring an action against NATO states as it had not been a member of the
UN and thus a party to the Statute in 1999.
In its decision on the merits in the Genocide Convention case in 2007, the Court noted that its
decision of 1996 constituted res judicata and could not be re-opened in the light of its subsequent
rulings. State succession also covers the situation of unification. One method of unification is by
the creation of a totally new state, such as the merger of the Yemen Arab Republic and the
People’s Democratic Republic of to exist: see P. R. Williams, ‘State Succession and the
International Financial Institutions’, Yemen. Under the agreement between the two states of 22
April 1990 the establishment of the Republic of Yemen was accomplished by way of amerger of
the two existing states into a new entity with a new name Unification may also be achieved by
the absorption of one state by another in circumstances where the former simply disappears and
the latter continues, albeit with increased territory and population. Such was thecase with
Germany. Following the conclusion of the Second World War, Germany was divided
into the US, USSR,UK and French zones of occupation and a special Berlin area not forming
part of any zone. Supreme authority was exercised initially by the Commanders-in-Chief of the
Armed Forces of the Four Allied Powers46 and subsequently by the three Allied High
Commissioners in Bonn, with parallel developments occurring in the Soviet zone. The
Convention on Relations between the Three Powers and the Federal Republic of Germany
(FRG), which came into force in 1955, terminated the occupation regime and abolished the
Allied High Commission. The Three Allied Powers retained, however, their rights and
obligations with regard to Berlin and relating to ‘Germany as a whole, including the reunification

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of Germany and a peace settlement’. Recognition of the German Democratic Republic (GDR)
Page | 54
was on the same basis, i.e. as a sovereign state having full authority over internal and external
affairs subject to the rights and responsibilities of the Four Powers in respect of Berlin and
Germany as a whole. Accordingly, it was accepted that in some sense Germany as a whole
continued to exist as a state in international law. The question of the relationship of the two
German states to each other and with respect to the pre-1945 German state has occasioned
considerable interest Article 1 of the Agreement declared that ‘there shall be established between
the State of the Yemen Arab Republic and the State of the People’s Democratic Republic of
Yemen . . . a full and complete union, based on a merger, in which the international personality
of each of them shall be integrated in a single international person called “the Republic of
Yemen”’: and generated no little complexity, not least because the Federal German
Republic always claimed to be the successor of the pre-1945 Germany.
On 18 May 1990 a treaty between the two German states was signed establishing aMonetary,
Economic and Social Union. In essence this integrated the GDR into the FRG economic system,
with the Deutsche Mark becoming legal tender in the GDR and with the Bundes bank becoming
the central bank for the GD Raswell as for the FRG. On31August 1990, a second treaty was
signed between the two German states which provided for unification on 3 October 1990 by the
accession of the GDR under article 23 of the Basic Law of the Federal Republic. On 12
September 1990 the Treaty on the Final Settlement With Respect to Germany was signed
by the two German states and the Four Allied Powers. This latter agreement settled definitively
matters arising out of the Second World War. It confirmed the borders of unified Germany as
those of the FRG and the GDR (i.e. the post-war Oder–Neisse frontier with Poland), provided for
a reduction in the armed forces of Germany and for the withdrawal ofSoviet forces from the
territory of the GDR. The Four Allied Powers terminated their rights and responsibilities
regarding Berlin and Germany as a whole so that the united Germany has full sovereignty over
its internal and external affairs.

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The Treaty
Page |between
55 the Federal Republic of Germany and the German Democratic Republic of
August 1990 clearly provided that the latter was simply assimilated into the former. Article 1 of
the Treaty stipulated that, ‘upon the accession of the German Democratic Republic to the Federal
Republic of Germany in accordance with article 23 of the Basic Law taking effect on 3 October
1990, the Lander of Brandenburg, Mecklenburg- Western Pomerania, Saxony, Saxony-Anhalt
and Thuringia56 shall become Lander of the Federal Republic of Germany’. This approach,
whereby I.e. the constituent provinces of the German Democratic Republic. international law
unified Germany came about by a process of absorption of the constituent provinces of the
former German Democratic Republic into the existing Federal Republic of Germany by way of
the extension of the constitution of the latter, is reinforced by other provisions in the Unification
Treaty.
Article 7, for example, provided that the financial system of the FRG ‘shall be extended to the
territory specified in article 3’ (i.e. the Lander of the former GDR), while article 8 declared that
‘upon the accession taking effect, federal law shall enter into force in the territory specified in
article 3’.International practice also demonstrates acceptance of this approach. No state objected
to this characterisation of the process. In other words, the view taken by the parties directly
concerned and accepted by the international community demonstrates acceptance of the
unification as one of the continuity of the Federal Republic of Germany and the disappearance or
extinction of the German Democratic Republic.
Succession to treaties
The importance of treaties within the international legal system requires no repetition. They
constitute the means by which a variety of legal obligations are imposed or rights conferred upon
states in a wide range of matters from the significant to the mundane. Treaties are founded upon
the pre-existing and indispensable norm of pacta sunt servanda or the acceptance of treaty
commitments as binding. Treaties may fall within the following categories: multilateral treaties,
including the specific category of treaties concerning international human rights; treaties
concerned with territorial definition and regimes; bilateral treaties; and treaties that are
treated as ‘political’ in the circumstances.

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Page | 56
The rules concerning succession to treaties are those of customary international law together
with the Vienna Convention on Succession of States in Respect of Treaties, 1978, which came
into force in 1996 and which applies with regard to a succession taking place after that date.
As far as devolution agreements are concerned, article 8 of the Convention provides that such
agreements of themselves cannot affect third states and this reaffirms an accepted principle,
while article 9, dealing with unilateral declarations, emphasises that such a declaration by the
successor state alone cannot of itself affect the rights and obligations of the state and third states.
In other words, it would appear, the consent of the other parties to the treaties in question or an
agreement with the predecessor state with regard to bilateral issues is required.
Categories of treaties: territorial, political and other treaties

Treaties may for succession purposes be generally divided into three categories. The first relates
to territorially grounded treaties, under which rights or obligations are imposed directly upon
identifiable territorial units. The prime example of these are agreements relating to territorial
definition. Waldock, in his first Report on Succession of States and Governments in Respect of
Treaties in 1968, declared that ‘the weight both of opinion and practice seems clearly to be in
favor of the view that boundaries established by treaties remain untouched by the mere fact of a
succession. The opinion of jurists seems, indeed, to be unanimous on the point . . . [and] State
practice in favor of the continuance in force of boundaries established by treaty appears to be
such as to justify the conclusion that a general rule of international law exists to that effect.
For reasons relating to the maintenance of international stability, this approach has been clearly
supported by state practice. The Latin American concept of uti possidetis juris, whereby the
administrative divisions of the of Treaties, which stipulates that a fundamental change in
circumstances may not be invoked as a ground for terminating or withdrawing from a
treaty that establishes a boundary. In addition, article 11 of the Vienna Convention on
Succession to Treaties, although in terminology which is cautious and negative, specifies that
A succession of States does not as such affect:
(a) a boundary established by treaty; or

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(b) obligations
Page | 57and rights established by a treaty and relating to the regime
of a boundary.
The International Court dealt with succession to boundary treaties generally in the
Libya/Chadcase, where it was declared that ‘once agreed, the boundary stands, for any other
approach would vitiate the fundamental principle of the stability of boundaries, the importance of
which
has been repeatedly emphasised by the Court’. More particularly, the Court emphasised that ‘a
boundary established by treaty thus achieves a can cease to be in force without in any way
affecting the continuance of the boundary . . . when a boundary has been the subject of
agreement, the continued existence of that boundary is not dependent upon the continuing
life of the treaty under which the boundary is agreed.’ It is particularly important to underline
that the succession takes place, therefore, not as such to the boundary treaty but rather to the
boundary as established by the treaty. The Tribunal in the Eritrea/Yemen case emphasised that
boundary and territorial treaties made between two parties constituted a special category of
treaties representing a ‘legal reality which necessarily impinges upon third states, because they
have effect erga omnes’.
Territorially grounded treaties extend somewhat beyond the establishment of boundaries into the
more controversial area of agreements creating other territorial regimes, such agreements being
termed ‘localised’ or ‘real’ or ‘dispositive’. Examples of such arrangements might
include demilitarised zones, rights of transit, port facilities and other servitudes generally
multilateral conventions’. However, this ‘modern-classical’ approach is difficult to sustain as a
general rule of comprehensive applicability. One simply has to examine particular factual
situations, take note of the claims made by the relevant states and mark the reactions of third
states. In the case of bilateral treaties, the starting-point is from a rather different perspective.
In such cases, the importance of the individual contractual party is more evident, since only two
states are involved and the treaty is thus more clearly reciprocal in nature. Accordingly, the
presumption is one of non-succession, depending upon all the particular circumstances of

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the case. Practice

Page | 58 with regard to the US, Panama, Belgium and Finland supports the ‘clean slate’
approach.
Absorption and merger

Where one state is absorbed by another and no new state is created (such as the 1990 accession
to the Federal Republic of Germany of the Lander of the German Democratic Republic), the
former becomes extinct whereas the latter simply continues albeit in an enlarged form. The basic
situation is that the treaties of the former, certainly in so far as they may be deemed ‘political’,
die with the state concerned,88 although territorial treaties defining the boundaries of the entity
absorbed will continue to define such boundaries. Other treaties are also likely to be regarded as
at an end.
However, treaties of the absorbing state continue and will extend to the territory of the
extinguished state. These principles are, of course, subject to contrary intention expressed by the
parties in question. For example, in the case of German unification, article 11 coupled with
Annex I of the Unification Treaty, 1990 excluded from the extension of treaties of the Federal
Republic of Germany to the territory of the former German Democratic Republic a series of
treaties dealing primarily with NATO matters.
Article 31(1) of the Vienna Convention on Succession to Treaties provides that where two or
more states unite and form one successor state, treaties continue in force unless the successor
state and the other state party or states parties otherwise agree or it appears that this would be
incompatible with the object and purpose of the treaty or would radically treaty obligations of the
FRG as well as the principles of a free, democratic order governed by the rule of law, and
respecting the competence of the European Communities. The united Germany would then
determine its position after such consultations. It was also stipulated that should the united
Germany intend to accede to international organisations or other multilateral treaties of which the
GDR, but not the FRG, was a member, agreement was to be reached with the respective
contracting parties and the European Communities, where the competence of the latter was
affected. The situation thus differs fromthe scenario envisaged in article 31 of the 1978 treaty.

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Page | 59
In the case of mergers to form a new third state, the formulation in article 31 is more relevant and
acceptable. Practice appears to support that approach. For example, in the cases of both the
Egypt–Syria merger to form the United Arab Republic in 1958 and the union of Tanganyika and
Zanzibar to form Tanzania in 1964, the continuation of treaties in the territories to which they
had applied before the respective mergers was stipulated.
Cession of territory from one state to another

When part of the territory of one state becomes part of the territory of another state, the general
rule is that the treaties of the former cease to apply to the territory while the treaties of the latter
extend to the territory.Article 15 of the Vienna Convention on Succession of States to Treaties,
dealing with this ‘moving-frontiers’ rule,99 provides for this, with the proviso that where it
appears from the treaty concerned or is otherwise established that the application of the treaty to
the territory would be incompatible with the object and purpose of the treaty or would radically
change the condition for its operation, this extension should not happen. This is basically
consistent with state practice. When, for example, the US annexed Hawaii in 1898, its treaties
were extended to the islands and It should also be noted that the ThirdUS Restatement of
Foreign Relations Law,Washington, 1987, p. 108, provides that ‘when a state is absorbed by
another state, the international agreements of the absorbed state are terminated and the
international agreements of th absorbing state become applicable to the territory of the absorbed
state’. international life with ‘a clean slate’ and the same approach was adoptedwith regard to the
secession of Cuba from Spain in 1898 and that of Panama from Colombia in 1903. Similarly,
when Finland seceded from the Russian Empire after the First World War, the view taken by the
UK and the US was that Finland was not bound by the existingRussian treatiesdealing with the
territory.
While essentially this is the position taken by the Vienna Convention on Succession to Treaties
with regard to decolonised territories (discussed in the following subsection), article 34 provides
that ‘any treaty in force at the date of the succession of states in respect of the entire territory of

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the predecessor
Page | 60 state continues in force in respect of each successor state so formed’. Any treaty
which applied only to part of the territory of the predecessor state which has become a successor
state will continue in force in respect of the latter only. These provisions will not apply if the
states concerned otherwise agree or if it appears from the treaty or is otherwise established that
the application of the treaty in respect of the successor state would be incompatible with the
object and purpose of the treaty or would radically change the conditions for its operation.108
As far as the predecessor state is concerned in such a situation (assuming the predecessor state
remains in existence), article 35 provides that existing treaties remain in force after the
succession in respect of the remaining territory, unless the parties otherwise agree or it is
established that the treaty related only to the territory which has separated from the predecessor
state or it appears from the treaty or is otherwise established that the application of the treaty in
respect of the predecessor state would be incompatible with the object and purpose of the treaty
or would radically change the conditions for its operation.
The approach in the Vienna Convention was adopted on the basis of the International Law
Commission draft which had taken the position that ‘in modern international law having regard
to the need for the maintenance of the system of multilateral treaties and of the stability of treaty
relationships, as a general rule the principle of de jure continuity should apply’. This may have
been an attempt to distinguish decolonised territories (termed ‘newly independent states’ in the
Convention) from other had agreed generally to be bound by international obligations deriving
from treaties signed by the USSR. The US and Ukraine agreed by an exchangeof notes on
10May 1995 that in so far as bilateral treaties between them were concerned, article 34 of the
Convention would be taken as ‘a point of departure’. A treaty-by-treaty review by the two states
was conducted, as a result of which it was decided that some treaties had becomeobsolete, others
would not be applied and others, specifically listed in theAnnex to the note, were to be regarded
as still in force.
Whether in view of the greatly increased network of multilateral treaties and the vastly enhanced
interdependence of states founded and manifested upon such agreement, it is possible to say that
the international community is moving towards a position of a presumption of continuity, is in

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reality Page
difficult
| 61 to establish. Certainly the potentially disruptive effect of the creation of new
states needs to be minimised, but it is far too early to be able to declare that continuity or a
presumption of continuity is now the established norm.
Newly independent states

The post-Second World War period saw the dismantling of the overseas European empires.
Based in international legal terms upon the principle of self-determination, which was founded
upon a distinction between such territories and the metropolitan authority, decolonisation
produced a number of changes in the international legal system. The Vienna Convention on
Succession to Treaties sought to establish a special category relating to decolonised territories.
These were termed ‘newly independent states’ and defined in article 2(1)f as successor states ‘the
territory of which immediately before the date of the succession of states was a dependent
territory for the international relations of which the predecessor state was responsible’. Article 16
laid down the general rule that such states were not bound to maintain in force or to become a
party to any treaty by reason only of the fact that the treaty had been in force regarding the
territory in question at the date of succession. This approach was deemed to build upon the
traditional ‘clean slate’ principle applying to new states non-party states and article 17 of the
Vienna Convention provides that a ‘newly independent state’ may by a notification of succession
establish its status as a party to a multilateral treaty which at the date of succession was in force
in respect of the territory to which the succession relates, unless it appears from the treaty or is
otherwise established that the application of the treaty in respect of the newly independent state
would be incompatible with the object and purpose of the treaty or would radically change
the conditions of its operation. In addition, where it appears from the nature of the treaty itself
that the participation of any other state would require the consent of all the parties, such consent
must be forthcoming for the new state to participate.
The ‘clean slate’ principle has also in practice been mitigated by the terms of the process by
which many colonies achieved independence. A number of colonial powers, particularly the
United Kingdom, adopted the practice of concluding devolution agreements by which certain
treaties signed on behalf of the territory becoming independent continued to apply to the newly

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independent state. While such agreements would be considered res inter alios with regard to
Page | 62
third states, they were of value in establishing the appropriate framework for relations between
the former colonial power and the new state. Other newly independent states adopted
the practice of making unilateral declarations by which they made known their views as to treaty
succession. Such unilateral declarations often took the form of specifying that treaties would
continue in force for an interim period during which time they would be reviewed, but they could
not in themselves, of course, alter treaty relationships with third states. Devices such as
devolution agreements and unilateral declarations were of value, however, in mitigating the
effects that an absolute ‘clean slate’ approach might otherwise have had.
Dissolution of states
Where an existing state comes to an end as an international person and is replaced by two or
more other states, it is accepted that political treaties will not continue but that territorially
grounded treaties will continue to attach in force as between the UK and the successor states.The
question of Yugoslavia was more complicated in that until 2000, the Federal Republic
of Yugoslavia maintained that it was a continuation of the former Socialist Federal Republic of
Yugoslavia, while the other former republics maintained that the former SFRY had come to an
end to be replaced by a series of new states.
The issue of article 34 and automatic succession arose in the Application of the Genocide
Convention (Bosnia and Herzegovina v. Yugoslavia) case, where Bosnia argued that the rule
applied with regard to the GenocideConvention and Yugoslavia denied this. The Court, however,
didnot make a determination on this point. The issue arose again in the Gabˇc´ıkovo–
Nagymaros Project case,where the parties argued as to whetherthe rule of automatic succession
applied or not. The Court similarly declined to make a determination and focused instead on the
significance ofarticle 12.
International human rights treaties

A territorial treaty binds successor states by virtue of attaching to the territory itself and
establishing a particular regime that transcends the treaty. Can it be maintained that international

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humanPage
rights
| 63treaties are analogous and thus ‘attach’ to the inhabitants concerned within the
territory of the predecessor state and thus continue to bind successor states? There isno doubt that
human rights treaties constitute a rather specific category of treaties. They establish that
obligations are owed directly to individuals and often provide for direct access for individuals to
international mechanisms. The very nature of international human rights treaties varies
somewhat from that of traditional international agreements. TheInternational Court in the
Reservations to the Genocide Convention case emphasised that ‘in such a Convention the
contracting states do not have any interests of their own.
Succession with respect to matters other than treaties

Membership of international organisations
Succession to membership of international organisations will proceed (depending upon the terms
of the organisation’s constitution) according to whether a new state is formed or an old state
continues in a slightly different form. In the case of the partition of British India in 1947, India
was considered by the UN General Assembly as a continuation of the previous entity, while
Pakistan was regarded as a new state, which had then to apply for admission to the organisation.
Upon the merger of Egypt and Syria in 1958 to formthe United Arab Republic, the latter was
treated as a single member of the United Nations, while upon the dissolution of the merger in
1961, Syria simply resumed its separate membership of the organisation. In the case of the
merger of North and South Yemen in 1990, the new state simply replaced the predecessor states
as a member of the relevant international organisations. Where the predecessor state is dissolved
and new states are created, such states will have to apply anew for membership to international
organisations. For example, the new states of the Czech Republic and Slovakia were admitted as
new members of the UN on 19 January 1993.
The Sixth (Legal) Committee of the General Assembly considered the situation of new states
being formed through division of a member state and the membership problem and produced the
following principles:
1. That, as a general rule, it is in conformity with legal principles to presume that a state which is
a member of the Organization of the United Nations does not cease to be a member simply

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because its |Constitution

Page 64 or frontier in general poses the least problem is that of absorption or
merger, since the absorbing or newly created state respectively will simply take over the assets
and debts of the extinguished state. The issues were, however, discussed in detail in the context
of German unification. Article 21 of the Unification Treaty provides that the assets of the
German Democratic Republic which served directly specified administrative tasks were to
become Federal assets and were to be used to discharge public tasks in the territory of the former
GDR. Article 22 dealt with public assets of legal entities in that territory, including the
land and assets in the agricultural sectors which did not serve directly specified administrative
tasks. Such financial assets were to be administered in trust by the Federal Government and be
appointed by federal law equally between the Federal Government on the one hand and the
Lander of the former GDR on the other, with the local authorities receiving an appropriate share
of the Lander allocation. The Federal Government was to use its share to discharge public tasks
in the territory of the former GDR, while the distribution of the Lander share to the individual
Lander was to take place upon the basis of population ratio. Publicly owned assets used for the
housing supply became the property of the local authorities together with the assumption by the
latter of a proportionate share of the debts, with the ultimate aim of privatisation.
In fact, state practice demonstrates that with the exception of some clear and basic rules, all will
depend upon the particular agreement reached in the particular circumstances. In the case of the
former Czech and Slovak Federal Republic, the two successor states agreed to divide the assets
192 OpinionNo. 13, ibid., p. 728. The Yugoslav Agreement on Succession Issues, 2001provides
that where the allocation of property results in a ‘significantly unequal distribution’ of
SFRY state property, then the matter may be raised with the Joint Committee established
under article 5 of the Annex. Unless they were earmarked on 1 October 1989 predominantly for
administrative tasks which under the Basic Law of the FR Gare to be discharged by the Lander,
local authorities or other public administrative bodies, in which case they will accrue to the
appropriate institution of public administration. Administrative assets used predominantly for
tasks of the former Ministry of State Security/Office for National Security are to accrue to
the Trust Agency established under the Law on the Privatisation and Reorganisation of
Publicly Owned Assets (Trust Law) of 17 June 1990 for the purpose of privatising former

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publicly o need
Page | 65 companies. These were termed ‘financial assets’ and deliberately exclude social
insurance assets and liabilities of the predecessor state195 in the ratio of two to one (the
approximate population ratio of the two new states). In the case of the former Soviet Union,
Russia and the successor states signed agreements in 1991 and 1992 apportioning assets and
liabilities of the predecessor state with the share of Russia being 61.34 per cent and the Ukraine
being 16.37 per cent. In the case of the former Yugoslavia, the Agreement on Succession Issues
of 2001, in addition to the provisions referred to above, provided for the distribution of assets on
the basis of agreed proportions. Financial assets in the International Monetary Fund (IMF)
5. INTERNATIONAL LAW AND THE USE OF FORCEDEVELOPMENT OF THE

LAW ON THE USE OF FORCE IN INTERNATIONAL LAW
Early Attempts to Regulate the Use of Force
In relative terms, the prohibition on the use of force as a viable tool of international relations is a
very modern concept. Whilst there have been numerous attempts to regulate the use of force, the
notion of a global approach to prohibiting unprovoked military aggression is unique to the
twentieth century. Ancient civilizations were often prepared to resort to war against rival
groups or societies to settle disputes or to pursue strategic interests. This often included access to
resources or the conquest of territory under the control of another group. The consequences of
warfare between societies were often brutal; survivors on the losing side would often be enslaved
as part of the victor’s attempts to destroy the vanquished society.
The Romans had several requirements that needed to be satisfied before they would commit to
warfare. Before engaging in a military campaign, Roman leaders would often seek the approval
of the college of fetiales. This religious body would then assess whether the proposed war was in
accordance with the implied commands of the gods. The Roman scholar, Cicero, wrote that, until
a formal declaration of war had been made, no war could be considered just.
Early Religious Doctrines

The early Christian Church initially refused to accept that war could, in any circumstances, be
morally sanctioned. Because of this belief, Christians were forbidden from joining any army

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until 170
PageAD.
| 66 The Christian scholar, St Augustine, was vehemently opposed to wars of
conquest, and defined the concept of just war in the following vague terms: Just wars are usually
defined as those which avenge injuries, when the nation or city against which warlike action is to
be directed has neglected either to punish wrongs committed by its own citizens or to restore
what has been unjustly taken by it. Further that kind of war is undoubtedly just which God
himself ordains. Of course, what ‘God himself ordains’ was and is invariably a matter
of human contrivance and the prescription of a just war theory clearly opened a floodgate of
aggressive wars waged by churches and their leaders.10 Such ‘just war’ notions would come to
plague moral and legal debate about the right to use force and in what circumstances – evidenced
by its vague content being hijacked by all sides in the so-called ‘war on terror’ and even in
currently developing conceptions of a responsibility to protect. Early scholars of Islam also wrote
of religious doctrines which contained guidance on acceptable reasons to resort to war. These
reasons included punishment for apostasy, defence of land or self, and authorized warfare against
societies not of the Islamic faith.
Early Twentieth Century

Numerous endeavours were made to regulate the use of force before the outbreak of the First
World War. Beginning with the Hague Conventions of 1899 and 1907, states attempted to
develop laws to govern the resolution of disputes and to prohibit aggressive nations from
resorting to force as an integral aspect of diplomatic relations. Despite the vague wording
of the Conventions, the treaties represented an extraordinary multilateral approach to the
regulation of armed force.
The League of Nations

In the aftermath of the First World War, the newly established League of Nations made a
concerted attempt to restrict the use of force in international relations. The Covenant of the
League of Nations (1919) imposed procedural constraints on states in order to reduce the
possibility of resorting to war. Whilst the Covenant sought to reduce the likelihood of warfare,
the use of force remained permissible if certain prescribed conditions were exhausted. The clear
intention of the drafters was to reduce the reliance of states on force as a method of dispute

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resolution.
Page As
| 67Article X dictates, states had an obligation to respect the territorial integrity and
political independence of other states. Most importantly, however, is Article XVI, which
specifies that a state will have committed an act of war if it resorts to force without satisfying the
preconditions contained in the Covenant.
Despite the clear attempt to reduce the reliance on armed force, the Covenant fell far short of
prohibiting states from resorting to war in all circumstances. To address this issue, the Sixth
Assembly of the League of Nations on 25 September 1925 passed a resolution stating that a war
of aggression constitutes ‘an international crime’. While the provisions of the Covenant of the
League of Nations represented an important the use of force by states, a more significant regime
concerning the use of force emerged in this period. The General Treaty for the Renunciation of
War (1928) (commonly referred to as the Kellogg-Briand Pact) is a multilateral treaty that
remains in force to the present day. When it first entered into operation in 1928, the Pact applied
almost universally, as only four states had not ratified or assented to it before the outbreak of the
Second World War.
THE UNITED NATIONS AND THE POST-WAR SYSTEM OF COLLECTIVE

SECURITY
The prohibition on the use of force underpins the United Nations system. In the aftermath of the
Second World War, the drafters of the UN Charter sought to restrict the use of force to very
limited circumstances, and exclude any right to take unprovoked and aggressive action against a
foreign state. Brownlie describes the rationale for the prohibition on the use of force under the
UN system:The security scheme based upon the primary role of the Security Council is not an
abstract scheme but reflects the international consensus that individual States, or a group of
States, cannot resort to force (for purposes other than selfdefence) except with the express
authorization of the United Nations.
The Meaning of ‘Force’ and ‘Threat of Force’

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The UN Charter
Page | 68 refers to the concept of ‘force’, as opposed to ‘war’. This is significant because
force encompasses a much broader range of conduct, and there is no requirement for a state to
make a formal declaration of war for it to be in breach of the prohibitions on the use of force.
Article 2(4) of the UN Charter prohibits the use and threat of force, except in specifically
designated circumstances, and emphasizes the requirement for states to settle their differences by
peaceful means:
3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
The most blatant use of force is an invasion or attack by the armed forces of a state upon the
territory of another state. This includes any military occupation, however temporary, and any
attempt to forcibly annex the territory. States are prohibited from bombarding the territory of
other states with any form of weaponry and this extends to targeting assets of a foreign state,
such as ships or aircraft outside territorial borders. The concept of force applies to the practice of
blocking access to ports or attempting to prohibit passage to and from airfields, and incorporates
conduct such as preventing supplies, such as food and medical supplies,from reaching another
state, whether by land, sea or air.
The Meaning of ‘Against the Territorial Integrity or Political

Independence’
At times it has been argued that a particular use of force by a state has not violated the territorial
integrity or political independence of another state, and therefore was not in breach of Article
2(4) of the UN Charter. An often cited example of this was Israel’s armed incursion on the
territory of Uganda for the purpose of rescuing its nationals from an Air France plane that had
been hijacked by two Palestinian and two German nationals and rerouted to Entebbe. Uganda
reacted angrily, forwarding a letter to the President of the Security Council seeking Israel’s
condemnation for its act of aggression. Although the matter was debated vigorously before

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the Security Council, no agreement could be reached and no resolution passed. There was
Page | 69
considerable support, including from the US and UK, for the proposition that, in circumstances
where the nationals of a state are at risk, a state may intervene militarily to rescue them and that
such an incursion would not be a violation of the territorial integrity or political independence of
that state. This was rejected by a number of other states in debates before the Security Council
who viewed the actions of Israel, whatever justification it might have, as a clear violation of
Article 2(4). As Thomas M. Franck has noted:
The opposition of so many states, in this instance, thus illustrates the depth of fear of opening the
door, however narrowly, to unilateral use of force, even where the justification for intervention is
strong. But the considerable support Israel aroused also demonstrates the persuasive power of a
well-presented and demonstrated case.
INVITATION AND INTERVENTION

Non-international Armed Conflicts
The UN Charter clearly contemplates an international system that is primarily concerned with
diplomatic relations between states.50 States can be held accountable for their actions and
subjected to punitive measures if they do not comply with the rules of international law.
Examples include condemnation resolutions, economic sanctions and the use of force as a last
resort to alleviate a threat to international peace and security. However, the UN Charter does not
contain an explicit procedure for the resolution of conflicts that are wholly contained within a
single state, for the simple reason that (traditionally, at any rate) what occurs within a state’s
borders are its internal concerns and not a matter of international law. Unless a situation involves
two or more states, Article 2(7) of the Charter appears to prevent the UN, outside of Security
Council enforcementaction under Chapter VII, from taking any coercive action:
Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state . . . but this principle
shall not prejudice the application of enforcement measures under Chapter VII. For example, the
international community cannot forcibly intervene to mitigate the effects of a widespread famine

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or cholera
Page |epidemic
70 if the crisis is confined to a single state. Whilst t here may be a moral
imperative to intervene, the concept of state sovereignty prevents collective action without the
consent of the affected state.
This prohibition on international action when a crisis or conflict is contained within a single state
can cause widespread frustration. The failure of the UN to intervene to prevent the Rwanda
genocide stands as the modern example par excellence. To overcome this prohibition without
expressly encroaching on a state’s sovereignty, states have at times – and selectively developed
legal justifications to intervene in, and to mitigate the impact of, humanitarian crises. Examples
include the doctrine of humanitarian intervention (and possibly, more recently, the doctrine of the
responsibility to protect), delivery of humanitarian aid and the role of regional organizations.
Delivery of Humanitarian Aid

The provision of humanitarian aid is an integral function performed by various actors in the
international community. Traditionally the domain of powerful states, the task of providing vital
aid to war-torn and devastated civilian populations is now shared between a number of bodies,
including the UN, individual states and non-government organizations. The importance of
delivering humanitarian aid is enshrined in Article 52 John Kabia, Humanitarian Intervention
and Conflict Resolution in WestAfrica (Farnham, UK; Burlington, VT: Ashgate Publishing,
2009).
The objectives of humanitarian action are to save lives, alleviate suffering and maintain human
dignity during and in the aftermath of man-made crises and natural disasters as well as to prevent
and strengthen preparedness for the occurrence of such situations.Humanitarian aid can include a
wide variety of measures for the purpose of providing assistance to an affected population. In
addition to the provision of emergency food and water supplies, humanitarian aid can include
medical supplies, temporary shelters and sanitation equipment. The stated aim of humanitarian
assistance is to ensure a return to sustainable livelihoods and to strengthen the capacity of
affected communities to prevent and mitigate future crises.

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Regional
PagePeacekeeping
| 71 and Enforcement Actions
The UN Charter explicitly allows for the operation of regional peacekeeping and enforcement
organizations. Rather than simply relying on the Chapter VII authority of the Security Council,
regional organizations can be granted a specific mandate to respond to an emerging threat to
international peace and security.
Examples of these regional organizations are the North Atlantic Treaty Organization (NATO) and
the ANZUS Alliance (Australia, New Zealand and USA). These organizations require their
members to commit to take varying degrees of collective action should a fellow member be
subjected to an armed attack. As part of this commitment Member States often share intelligence
resources and information, participate in joint military exercises and collaborate to establish
regional security objectives.
Article 52 of the UN Charter allows regional agencies to deal with ‘matters relating to the
maintenance of international peace and security as are appropriate for regional action’, on
condition that they act in accordance with UN purposes and principles and ‘make every effort to
achieve pacific settlement of local disputes’ (with the encouragement of the Security Council)
before referring them to the Security Council. Article 53 of the UN Charter enables regional
agencies, where appropriate and with the authorization of the Security Council, to undertake
enforcement action on behalf of the UN. In all activities undertaken or contemplated by regional
agencies for the maintenance of international peace and security, the Security Council must be at
all times kept fully informed.
HUMANITARIAN INTERVENTION
For an increasingly interventionist community of states, difficulties arise where a conflict or
emerging crisis is contained within the borders of a single state. The prohibition contained in
Article 2(4) of the UN Charter focuses on the threat or use of force against the territorial integrity
of a foreign state. The wording clearly contemplates a situation of conflict as and between states.
This is because the framework of collective security envisioned under the UN Charter maintains
a clear deference for the sovereignty of all states. No matter how big or small, superpower or

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rogue regime,
Page | 72each state’s sovereign ‘privacy’ is, at least in principle, to be protected. However,
there has developed in recent years something of a normative shift towards intervention by a
powerful part of the international community in the internal affairs of a state, particularly where
that state is engaged in or subjected to an internal upheaval that gives rise to a massive
humanitarian crisis.
Sovereignty and Humanitarian Intervention

Humanitarian intervention concerns the forcible intervention within the sovereign territory of a
state to prevent or mitigate the impact of a conflict or massive human rights violations. This
course of action is mostly considered where a domestic government is an active participant
(including mass arbitrary killings, forced expulsions and the deliberate targeting of ethnic
groups, but can also arise where a state is simply unable to protect its own citizens from gross
violations of human rights.
A permissive definition of the practice of humanitarian intervention is:The justifiable use of

force for the purpose of protecting the inhabitants of another state from treatment so arbitrary
and persistently abusive as to exceed the limits which the sovereign is presumed to act with
reason and justice. The concept of humanitarian intervention in response to gross and systematic
breaches of human rights is fraught with legal and moral complexity.
EXCEPTION TO THE RULE: SELF-DEFENCE AND COLLECTIVE SELF-DEFENCE

The most significant exception to the prohibition on the use of force is the right to self-defence.
It has long been recognized under international law that if an armed attack occurs against a state,
it is the inherent right of that state to use force to defend itself.
Development of Self-defence
The concept of self-defence was first addressed in the Caroline dispute of 1837. In this
landmark case, British forces attacked a ship moored on the Niagara River, which was suspected
of supporting an armed rebellion against the British. Without warning, British forces boarded the

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ship and attacked

Page | 73 33 American occupants. The British forces sent the Caroline adrift over the
Niagara Falls, killing twelve Americans. The British forces claimed that they acted in self-
defence, as they were responding to the impending threat of an armed rebellion.103 In a
diplomatic exchange, US Secretary of State, Daniel Webster, outlined his interpretation of the
requirements for a valid act of self-defence: It will be for that Government to show a necessity of
self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation
The principles expressed by Webster have been recognized as the basic foundation of the
principle of self-defence in international law. This statement introduced the twin requirements of
necessity and proportionality, which still operate under the UN system today.106 Jurisprudence
following the Caroline dispute regarded the practice of self-defence as an act of self-
preservation, which could only be permitted in dire circumstances.The right to self-defence was
expressly recognized in the Kellogg-Briand Pact,108 and, in reservations to the treaty, signatory
states make reference to ‘the reservation of the right of self-defence and also of collective self
defence.
Self-defence under the UN Charter

Article 51 of the UN Charter reserves the right of states to engage in individual or collective self-
defence. Article 51 represents the only explicit exception to the prohibition on the use of force
that is available to states, and is outlined as follows:
Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems necessary
in order to maintain or restore international peace and security. There are several important issues
of interpretation that arise from the wording of Article 51. The use of the term ‘inherent right of
individual or collective self-defence’ indicates that Article 51 is not the only source of the
principle. The use of this language implies that customary international law and previous state

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practice on| 74
Page the issue of self-defence are relevant considerations, a view supported by the
International Court of Justice in the Nicaragua case:
This definition is supplemented by the ICJ in the Oil Platforms case, in which the Court held that
the right of self-defence can only be invoked in response to ‘the most grave forms of the use of
force’.115 However, an armed attack may also consist of a series of attacks which, when
considered individually, would not justify a response in self-defence. If an armed attack has
occurred against a state, that state’s response in self-defence is limited to actions that are
necessary and proportionate, requirements that were subsequently supported by the ICJ in the
Oil
Platforms case and the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion).
An important requirement of Article 51 is that any measure taken inself-defence must be

‘immediately reported’ to the Security Council.This requirement exists so that the international
community can assesswhether an armed attack has occurred, and whether actions taken by
thevictim state in self-defence are necessary and proportionate to the originalaggression. This is a
clear break from customary international law, which contained no such reporting requirement to
a multilateral authority. As explained by the ICJ in the Nicaragua case, this requirement to report
to the Security Council is vital to assess objectively whether the victim state can legitimately
claim that it has acted in self-defence.
Collective Self-defence
An important aspect of Article 51 is the explicit reference to ‘collective self-defence’. It is clear
from this reference that a victim state can seek assistance from other states to repel an ‘armed
attack’. However, an issue can arise as to when other states can legitimately assist a victim state
under Article 51. An assisting state or coalition of states cannot unilaterally decide to intervene
and repel a perceived armed attack. In the Nicaragua case, the ICJ emphasizes this principle:
‘There is no rule permitting the exercise of collective self-defence in the absence of a request by
the State which regards itself as the victim of an armed attack.’ To permit other states to assist in

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a collective
Page | self-defence
75 action, the state for whose benefit the action is taken must consider
itself to be the victim of an armed attack.
Nicaragua applied to the ICJ, alleging that the United States had laid mines in Nicaraguan waters
and engaged in unprovoked attacks on ports. Nicaragua also alleged that the US trained, funded
and supported a group of anti-government rebels in their struggle against the incumbent ruling
regime of Nicaragua. It was argued that the US had violated the sovereignty of Nicaragua,
thereby violating the principle of non-intervention contained in Article 2(7) of the UN Charter,
and engaged in an unlawful use of force. The US argued that it acted in collectiveself-defence for
the benefit of El Salvador because of Nicaragua’s practice of harbouring Communist opponents
of the government of El Salvador.
The Court stated that there is ‘a specific rule whereby self-defence would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a rule well established
in customary international law’. It held that Nicaragua’s conduct in relation to El Salvador did
not constitute an armed attack. Whilst an armed attack could include ‘assistance to rebels in the
form of the provision of weapons or logistical or other support’, there was insufficient evidence
to conclude that Nicaragua had been engaged in an armed attack against El Salvador. Astate
cannot engage in acts of collective self-defence until the target of an armed attack requests
assistance. If this assistance is requested, the intervening state must notify the Security Council
in accordance with Article 51 of the UN Charter. In this case, there was no evidence to support a
finding that El Salvador had requested assistance, and the USA had not notified the Security
Council of its actions. Therefore, even if El Salvador had been the victim of an armed attack, the
USA could not engage in acts of collective self-defence against the territory of Nicaragua,
because such assistance had not been requested and the Security Council was not notified.
Status of Anticipatory Self-defence.

The most controversial aspect of Article 51 concerns whether a state’s right to self-defence
against an armed attack includes the right to anticipatory self-defence. This concept arises when
a state believes that an armed attack is imminent, but there has not yet been an act of aggression.

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Page | 76
Advocates of anticipatory self-defence argue that a state should have the right to use necessary
and proportionate force to prevent an armed attack on its territory, without having to wait for
such an attack to be imminent or inevitable.
Article 51 of the UN Charter explains that a state has the right to act in self-defence ‘if an armed
attack occurs’. A literal interpretation of the wording of Article 51 suggests that an armed attack
must already be in progress before a state can legitimately act in self-defence. This appears to
exclude any right to engage in acts of anticipatory self-defence. During the drafting discussions
at the San Francisco Conference, no recorded discussion exists about the intended meaning of
the term ‘if an armed attack occurs’. Timothy McCormack argues that this lack of discussion
means that the words were included without a limitation as to their meaning, which is significant
when compared to the extensive discussion of the language to be used in other provisions. One
possible interpretation is that the drafters of the UN Charter did not intend to prohibit
acts of anticipatory self-defence under Article 51.135 Because of the wording of Article 51,
supporters of anticipatory selfdefence are forced to cite customary international law to support
their position. Advocates refer to t he opinion of US Secretary of State Webster in the Caroline
case, namely that a state can take anticipatory steps in self-defence, provided that the need for the
adopted measures, overwhelming and there is no moment for deliberation
The concept of anticipatory self-defence was supported by the UN High-Level Panel on Threats,
Challenges and Change. In its December 2004 report, the Panel outlined the following position:
[A] threatened state, according to long established international law, can take military action as
long as the attack is imminent, no other means would deflect it and the action is proportionate.
The problem arises where the threat in question is not imminent but still claimed to be real; for
example the acquisition, with allegedly hostile intent, of nuclear weapons making capability.139
This report appears to give support to the position that a state can use force to prevent an
imminent attack on its own territory. For example, if a state is amassing troops, positioning
weapons and publicly declares its intent to invade, the victim state may be permitted to use a
necessary and proportionate amount of force to nullify the imminent threat.

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In 1981, Israel
Page | 77 bombed an Iraqi nuclear reactor that was under construction in Osirak on the
basis of anticipatory self-defence. Israel argued that the construction of a nuclear reactor in a
hostile state posed a direct threat to its sovereignty and political independence. Notwithstanding
any future hostility that may ensue, Israel was not under an imminent threat of nuclear or other
armed attack from Iraq. The actions of Israel were unanimously condemned in Security Council
Resolution 487 as a ‘clear violation of the Charter of the United Nations’, as there was no
imminent threat of armed attack posed by Iraq.
Self-defence and Pre-emption

The notion of pre-emption allows a state the right to use military force to nullify a perceived
threat to its sovereignty or territorial integrity. Pre-emption can be distinguished from
anticipatory self-defence, because an attack does not have to be imminent to invoke the
justification of a pre-emptive strike.
To this extent, the state acting in pre-emption does not have to be expecting an armed attack, and
can simply be responding to a perceived military threat. This can lead to a military strike against
a state before there is any evidence that an attack has been planned or even contemplated.
Pre-emption was included in the very controversial 2002 National Security Strategy of the
United States of America, commonly known as the ‘Bush Doctrine’. In response to the attacks of
11 September 2001, President Bush argued that the United States has the right to eliminate the
threat posed by a ‘rogue state and their terrorist clients’.Significantly, this policy targeted non-
state actors as well as states, and extended far beyond the concept of anticipatory self-defence.
The Bush Doctrine is an aggressive policy that overtly threatens the sovereignty of adversaries of
the US. The concept of pre-emption operates far beyond the scope of Article 51 of the UN
Charter, as a perceived threat does not have to be imminent or even planned to be used as the
justification for retaliation. By its very nature, a pre-emptive strike cannot be a defensive action,
as there is no current threat to which a target state isresponding. This indicates that the doctrine
of pre-emption is not an act of self-defence, but rather a policy of threat and aggression.

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EXCEPTION
Page | 78 TO THE RULE: CHAPTER VII AUTHORITY OF THE SECURITY
COUNCIL
The prohibition on the use of force is subject to the unique authority of the Security Council.
Chapter VII of the UN Charter bestows on the Security Council a responsibility to identify and
investigate any emerging threat.
6. TERRITORY AND ITS ACQISITION IN INTERNATIOAL LAW:

This document will focus on the traditional methods of acquisition of territory by states in
international law(Discovery, Occupation, Conquest, Cession, Accretion/Avulsion, Prescription,
Contiguity). Notion of terra nullis and its rejection in modern international law. Relevance of
concepts of inter-temporal doctrine and critical date. Implications of principles of modern
international law on traditional modes(self determination, non-use of force), of concepts of
territorial integrity and uti possidetis, and loss of territory.
1.INTRODUCTION:
1.1. DEFINITION:
Territory refers to a general word meaning a geographical area, especially land that is
administered by a country, but not a permanent part of that country or completely integrated into
its governmental workings.2 According to Black's Law Dictionary, it refers to a geographical
area included within a particular governments jurisdiction, the portion of the earth's surface
that is in a states exclusive possession and control. 3 That means territory can be determined by
the exercise of jurisdiction not mere possession.
The concept of territory cannot be over re-stated as its explicit that a state must possess territory
to qualify as a state,4 and this territorial sovereignty must be respected by all different states. In
Uganda, it is provided under Objective IV of National Objectives and Directive Principles of
State Policy under the 1995 Constitution of Uganda that, the State and citizens of Uganda shall
at all times defend the independence, sovereignty and territorial integrity of Uganda. This all
shows the importance of territory under international and thus, its discussion is imperative.
2Oran's Dictionary of Law by, Mark Tosti, J.D. Contributing Author, page 484
3 Black's Law Dictionary 9th Edition, Bryan A. Garner, Editor in Chief, page 1611
4Article 1 of the 1933 Montevideo Convention

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2.PRINCIPLESUNDERTERRITORY:
Page | 79
2.1. Territorial Sovereignty:

Territorial sovereignty is best understood as a legal nexus, and has been defined variably as the
relationship between the state and the physical area it encompasses, and the framework within
which the public power is exercised. In classical international law territorial sovereignty is
thought to comprise both rights and duties.5 The Island of Palmas Case defines it to mean
exclusive right to display the activities of a state.
Judge Huber noted in the Island Palmas case,6 that sovereignty in relation to a portion of the
surface of the globe is the legal condition necessary for the inclusion of such portion in the
territory of any particular state. Territorial sovereignty has a positive and a negative aspect. The
former relates to the exclusivity of the competence of the state regarding its own territory, while
the latter refers to the obligation to protect the right of other states. The international court noted
in the Burkina Faso/Mali case,7 the word title comprehends both any evidence which may
establish the existence of a right and the actual source of that right.
2.2. Notion of Terra Nullis and Communis:

Terra Nullis, refers to territory that may be acquired by states but has not yet been placed under
territorial sovereignty inWestern Sahara case,8 it was determined that territory inhabited by a
people with a political or social structure is not terra nullius and thus cannot be occupied.
Res Communis on the other hand, is a territory not capable of being placed under state
sovereignty, such as the high seas, the exclusive economic zones and outer space.9
5 Gidoen Boas Public International Law,2012,page 181

6 Island of Palmas case(Netherlands vs US) (1928) 2 RIAA 829
7 Frontier Dispute Case(Bukina Faso vs Mali) (1986) ICJ 554
8 (1975) ICJ Rep.6
9 Gidoen Boas Public International Law,2012, 181

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2.3. Inter-Temporal
Page | 80 Doctrine and Critical Date:
Judge Huber, in the Island of Palmas case(Supra), stated that the principle of inter-temporal law
requires that a juridical(connected with the law) fact must be appreciated in the light of the law
contemporary with it, and not of the law in force at the time such a dispute in regard of it a rises
or falls to be settled. It is a relatively well established principle of law, and is tied to concepts of
stability and certainty. However, in many cases there will be a so called critical date: the period
when ‘the material facts of a dispute are said to have occurred and after which the actions of the
parties to a dispute can no longer affect the issue. For example, if the territorial dispute centres
upon an alleged cession by treaty, the date of the treaty may be the critical date for that is the
moment at which the rights of the states have crystallized. Critical dates are particularly
important in the context of uti possidetis whereby a new state will inherit the boundaries of its
predecessor. In such a situation the moment of independence is normally the critical date, though
this does not preclude the possibility that some situation or act had crystallized state rights
earlier. Of course, some cases may have multiple dates of importance, and in some cases there
may be no critical date at all. The importance of the concept of a critical date depends on the
circumstances, and it is open to a tribunal to relegate little weight to it, as was done in the
Argentine-Chile Frontier case,10 Court stated that; "it is agreed by both parties that the notion of
the critical date is not a right one and that a good deal is left to the appreciation of the Court, and
moreover that the critical date is not necessarily the same for all purposes...for these reasons, the
Court has considered that notion of the critical date to be of little value in the present litigation
and has examined all the evidence submitted to it, irrespective of the date of the acts to which
such evidence relates."
2.4. The Concept of Territorial Integrity and Uti Possidetis:
The influence of the principle of territorial integrity may be seen in the Latin America idea of uti
possidetis, whereby the administrative divisions of the Spanish empire in South America were
deemed to constitute the boundaries for the newly independent successor states thus,
theoretically excluding any gaps in sovereignty which might precipitate hostilities and encourage
foreign intervention. The question of uti possidetis was discussed in the case of Burkina Faso V
10Argentine-Chile Frontier case (Argentina v Chile) (1969) 38 ILR 20.

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R. of Mali(Supra)
Page | 81 where the compromis or special agreement by which the parties submitted the
case to the court specified that the settlement of the dispute should be based upon respect for the
principle of the intangibility of frontiers inherited from colonization. It was noted however, that
the principle had in fact developed into a general concept of contemporary international law and
was unaffected by the emergency of the right of people to self determination. It was defined in
that case to mean; the essence of the principle lies in its primary aim of securing respect for the
territorial boundaries at the moment when independence is achieved. Such territorial boundaries
might be no more than delimitations between different administrative division or colonies all
subject to the same sovereign.
Furthermore, the concerns for territorial integrity and peace and stability have continually been
emphasized by the UN. For example, in the case of Gibraltar, the UN General Assembly clearly
applied the principle of territorial sovereignty in its adoption of Resolution 2353 (XXII),
determining that a colonial situation which even partially breaches the principles of national
unity and territorial integrity is incompatible with the purposes and principles of the UN Charter.
Nevertheless, the principle of self-determination and the application of uti possidetis have
evolved in recent practice, such that uti possidetis may no longer operate as the constraint it once
was.11
3.THE ACQUISITION OF TERRITORIAL SOVEREIGNTY
3.1.Accretion/Avulsion:
Accretion refers to the increase of land through new formations. Accretion as a form of
acquisition of territory was derived from the Roman law principle that states that anything added
follows the status of the principal thing. Acquisition by accretion takes place where a new
territory is added mainly through natural causes to the territory already under the sovereignty of
a state. For example, an island may rise within territorial sea of a State. In such cases, States by
this fact itself acquire sovereignty over the new formations. Thus, accretion basically refers to
the physical expansion of an existing territory through geographical process.
11Gidoen Boas Public International Law,2012,page 200

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Accretion
Pageis the attainment of sovereignty over new land due to slow movement of natural
| 82
forces; for example the gradual movement of a riverbed. On the other hand if the natural forces
happen suddenly, like creation of an island in territorial waters due to volcanic eruption, it is
referred to as Avulsion. In other words avulsion is a sudden change in the course of land or water
brought about by violent activities of nature; such as floods, storms or volcanic eruptions.
The Chamizal case in 1911,12 between the United States and Mexico decided the status of
territory created by a river subjected to both accretion and avulsion forces over a prolonged
period. The Chamizal Dispute between Mexico and the United States was concerning land
boundary changes made by the changing course of the Rio Grande between the USA and
Mexico. The USA claimed that the process of slow erosion and accretion had formed the new
tract. Mexico contended that it had been formed by avulsion. By a Convention of 1910 the
controversy was submitted to arbitration and the Commission held that part of the tract was due
to “slow and gradual erosion” (accretion) which was to be awarded to the United States and the
remainder part of the tract was due to the cut-offs in the floods (avulsion) was to be awarded to
Mexico.
3.2. Cession:
Cession occurs when an owner state transfers sovereignty over territory to another state. A state
may cede any part of its land territory, and by ceding all its territory it will completely merge
with the other state. Rivers and the maritime belt may not be ceded on their own, as they are an
inalienable appurtenance of the land. In order to effect a cession of territory, it must be intended
that the owner state transfers sovereignty, and not merely governmental powers short of
sovereignty.13
In the Island Palmas Case(Supra), the titled alleged by the United States of America as
constituting the immediate foundation of its claim is that of cession brought about by the Treaty
of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in
the region indicated in Article III of the Treaty and therefore also concerning the Island of
Palmas. It is evident Spain could not transfer more rights than she herself possessed. Thus,
12The Chamizal Arbitration Case (Mexico v. United States) (1911) 11 R.I.A.A. 316.
13 Gidoen Boas Public International Law,2012,page 186

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considering
Page |that
83 case, one cannot transfer territory which it does not possess. Court ruled in favor
of the Netherlands simply because USA claim that Spain had transferred territory to him was not
legal. Cession of territory are usually effected by a treaty. Examples can be found in the cession
of Hong Kong and Kowloon by China to the United Kingdom following the Opium Wars,
and the United States’ purchase of Alaska from Russia in 1867.14
3.3.Occupation:
It is defined in the Western Sahara case(Supra) as an original means of peacefully acquiring

sovereignty over a territory other than cession or sucession. It is a means of establishing title to a
territory which is not terra nullis(owned by no one). It gives a state original title to territory. It
must be by a state and not a private individual and such state must show intention to acquire
sovereignty over the area. Occupation basically relates to un inhabited territories and islands as
well as inhabited lands. Occupation as a mode of acquisition of territory historically only
occurred when a state intentionally acquired sovereignty over territory that was not subject to the
sovereignty of another state. In other words, the territory in question at the time must have been
uninhabited, or inhabited by persons whose community was not considered to be a state. This
was the crux of the Western Sahara case(Supra), in which it was determined that territory
inhabited by a people with a political or social structure is not terra nullius and thus cannot be
occupied.
For occupation to have successfully founded title to territory, the acquiring state first had to take
possession of the territory. This required both physical possession and the requisite intent to
acquire sovereignty. Secondly, an administration had to be established over the territory in
the name of the acquiring state. If the acquiring state failed to establish some responsible
authority which exercised governing functions within a reasonable time after taking possession,
then there was no effective occupation as no sovereignty had been exercised. Lastly, there had to
be some intent to act as sovereign, an animus possidendii. It was also required that the activities
of the state be referable to it and not unauthorized natural persons.
14 Ibid footnote 11

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Today,Page
it is| 84
conceivable that the acquisition of new territory through occupation is note
impossible given that little to no terra nullius land remains on this planet. However, that is not to
say that occupation is irrelevant to modern international law. For example, for the purposes of
resolving a current territorial dispute, it may be necessary to look back in time to see whether
title was, in fact, validly acquired through effective occupation in the first place, for the reason of
nemo dat quod non habet none may pass better title than they have.15
3.4. Prescription:
It is the acquisition of title by a public, peaceful and continuous control of territory. It is a mode
of establishing title to a territory which is not terra nullis and which has been obtained either
unlawfully or in circumstances wherein the legality of the acquisation cannot be
demonstrated.Although there has always been a school of thought that questioned whether
acquisitive prescription even constitutes a mode of acquisition, it had generally been accepted
that territory could be acquired through prescription as a matter of practice. Acquisitive
prescription involvedthe transfer of territory to an acquiring state through open possession by
continuous and undisturbed acts of sovereignty over a prolonged period of time, adverse to the
original state. No concrete rules existed that set out a minimum length of time or requisite acts of
sovereignty in order to have successfully acquired title by prescription. Such matters were
dictated by the individual circumstances of each case. It is important to note that such definitions
of acquisitive prescription, as with occupation, which emphasizes the passage of time, are now
outdated. What is more important is the establishment of effective control. The best example of
title founded by prescription can be found in the Island of Palmas case(Supra). In this case,
Judge Huber found that even if it were accepted that, as the United States claimed, Spain had
title to theisland by discovery, such title did not prevail in the face of a ‘continuous and peaceful
display of sovereignty, In this case it was required that there exist acts attributable only to
sovereignty, and the will to act as sovereign and, furthermore, acquiescence on the part of the
originalsovereign.
The difference between occupation and prescription.

15 Ibid note 12, page 186 and 187

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1. Occupation
Page | 85applies to virgin land while prescription can work to establish a title over any
territory.
3.4. Subjudication/Use of Force:

Lastly, subjugation was the acquisition of territory by military force, followed by annexation. 16
While this mode of acquisition was traditionally a predominant feature of the acquisition of
territory by states and empires, the use of force for the purpose of acquisition has, for some time,
been unlawful in international law Article 2(4) of the Charter of United Nations. Accordingly,
the purported Annexation of Kuwait by Iraq in 1990 was invalid, as it was acquired by
unlawful force. The principle of inter-temporal law subjugation may still be relevant, however, in
determining title in the context of the law as it stood at the time of the relevant acts. Of course,
use of force is not unlawful if exercised in self-defence.17
4. THE ROLE OF SUBSEQUENT CONDUCT, RECOGITION,AQUIESCENCE AND

ESTOPPEL:
4.1. Subsequent Conduct:
Article 31, paragraph 3 (a) of the Vienna Convention on the Law of Treaties elaborates on
“subsequent agreement” as an agreement between the parties, reached after the conclusion of a
treaty, regarding the interpretation of the treaty or the application of its provisions. A “subsequent
practice” as an authentic means of interpretation under article 31, paragraph 3 (b), consists of
conduct in the application of a treaty, after its conclusion, which establishes the agreement of the
parties regarding the interpretation of the treaty. Other “subsequent practice” as a supplementary
means of interpretation under Article 32 consists of conduct by one or more parties in the
application of the treaty, after its conclusion.
16 Gidoen Boas Public International Law,2012 at page 189
17Ibid page 188

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Subsequent
Page |conduct
86 may be relevant in a number of ways under international law and among
others include the following;
First, as a method of determining the true interpretation of the relevant boundary instrument in
the sense of the intention of the parties concerned. Article 31(3)(b) of the Vienna Convention on
the Law of Treaties 1969 provides, inter alia, that there shall be taken into account, together with
the context, (a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions; and (b) any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its interpretation. The
Argentina /Chile,18
Secondly, as a method of resolving an uncertain disposition or situation for example whether a

particular area did or did not fall within the colonial territory in question for purposes of
determining the Uti possidetis line. Uti possidetis doctrine is a principle of international law
which provides that newly formed sovereign states should have the same borders that their
preceding dependent area had before their independence as was seen in the El Salvador Case
Thirdly, as a method of modifying such an instrument or pre-existing arrangement. The

Eritrea/Ethiopia boundary commission explained the general principles that the effect of
subsequent conduct may be so clear in relation to matters that appear to be the subject of a given
treaty that the application of an otherwise pertinent treaty provision may be varied or may be
even ceased to control the situation, regardless of its original meaning.
The various manifestations of the subsequent conduct of relevant parties have a common
foundation in that they all rest upon a stronger or weaker extent upon the notion of consent and
consent here of course is the basis of cession.
4.2. Recognition:
Recognition is a positive act by a state accepting a particular situation and, even though it may be
implied from all the relevant circumstances, it is nevertheless an affirmation of the existence of a
specific factual state of affairs, even if that accepted situation is inconsistent with the term in a
treaty. Acquiescence, on the other hand, occurs in circumstances where a protest is called for and
1838 ILR ,PP 10

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does not happen,

Page | 87 or does not happen in time in the circumstances. In other words, a situation
arises which would seem to require a response denoting disagreement and, since this does not
transpire, the state making no objection is understood to have accepted the new situation. The
idea of estoppel in general is that a party which has made or consented to a particular statement
upon which another party relies in subsequent activity to its detriment or the other’s benefit
cannot thereupon change its position This rests also upon the notion of preclusion. While, of
course, the consent of a ceding state to the cession is essential, the attitude ado enhanced. In the
Eastern Greenland case,19 the Court noted that Denmark was entitled to rely upon treaties made
with other states (apart from Norway) in so far as these were evidence of recognition of Danish
sovereignty over all of Greenland. pted by other states is purely peripheral and will not affect the
legality of the transaction.20
4.3. Estoppel:
The idea of estoppel in general is that a party which has made or consented to a particular
statement upon which another party relies in subsequent activity to its detriment or the others
benefit cannot thereupon change its position. Estoppel is a legal technique whereby states
deemed to have consented to a state of affairs cannot afterwards alter their position, estoppel may
arise either by means of a prior recognition or acquiescence, but the nature of the consenting
state’s interest is vital.
Where for example two states put forward conflicting claims to territory any acceptance by one
of the other’s position will serve as a bar to a renewal of contradicting assertions. This was
illustrated in the Eastern Greenland case(Supra) where court regarded the Norwegian
acceptance of treaties with Denmark, which incorporated Danish claims to all of Greenland, as
preventing Norway from contesting Danish sovereignty over the area.
The leading case on estoppel is the Temple of Preach Vihear case,21 which concerned a broader
dispute between Cambodia and Thailand. The frontier was the subject of the treaty in 1904
19 Eastern Greenland Case(Denmark v. Norway) (1933) PCIJ Ser. A/B No. 53

20 Malcom Shaw, Public International Law, 6th Edition at page 517
21 Temple of Preah Vihear (Cambodia v. Thailand) (1962) ICJ Rep.6

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between Thailand
Page | 88 and France(as sovereign over French indo-china which included Cambodia)
which provided for a delimitation commission. The border was duly surveyed but was
ambiguous as to the sitting of the preach vihear temple area. Thailand called for a map from the
French authorities and this placed the area within Cambodia. The Thailand government accepted
the map and asked for further copies.
In other words, Thailand was estopped by its conduct from claiming that it consented the frontier
in the temple area. However it is to be noted that estoppel in that case was one element in a
complexity of relevant principles which included prescription and treaty interpretation. The case
also seemed to show that in situations of uncertainty and ambiguity, the doctrines of
acquiescence and estoppel come into their own, but it would not appear correct to refer to
estoppel as substantive law. The extent to which silence as such may create an estoppel is unclear
and much will depend upon the surrounding circumstances, in particular the notoriety of the
situation, the length of silence maintained in the light of that notoriety and the type of conduct
that would be seen as reasonable in the international community in order to safeguard a legal
interest.
4.4. Acquiescence:
Acquiescence is a word used to describe the reluctant acceptance of something without protest.
In international law, acquiescence is a form of subsequent conduct that represents territorial
acquisition. Conducts comes as a method of determining the true interpretation of the relevant
boundary instrument in the sense of the intention of the parties. Acquiescence occurs in
circumstances where a protest is called for and does not haven. In other words, a situation arises
which would seem to require a response denoting disagreement and since this does not transpire,
the state making no objection is understood to have accepted the new situation. In the Gulf of
Maine case,22 it was held that the essence of the principle of acquiescence is that one
governments knowledge, actual or constructive, of the conduct or assertion of rights of the other
arty to a dispute, and the failure to protest in the face of that conduct or assertion of rights,
involves a tacit acceptance of a legal position represented by the other arty conduct or assertion
of rights. At its most basic, then, acquiescence is silence, inaction or failure of protest that may in
22Gulf of Maine Case ICJ Reports, 1984, pp. 246, 305; 71 ILR,

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appropriate
Page |circumstances
89 give rise to a rebuttable presumption of acceptance or recognition of a
legal right or position claimed by another state. In order for acquiescence to be affirmed, there
must have been actual or constructive knowledge of a notorious claim, sufficient duration of the
acquiescence, and circumstances rendering the alleged acquiescence legally significant and the
safeguard most necessary to a realistic and acceptable allocation of the doctrine of acquiescence
lies in the demand that it must be interpreted strictly.
Acquiescence is important in acquisition of control contrary to the will of the former sovereign.
Where the territory is accompanied by emphatic protests of the former sovereign, no title by
prescription can arise, for such a title is founded on the acquiescence of the dispossessed state
and in such circumstances, consent by third states is of little consequence.
Acquiescence is relevant where the prescriptive title is based on what is called immemorial
possession. This is referred to as the origin of the particular situation being shrouded in doubt
and may have been lawful r unlawful but is deemed to be lawful in the light of the general
acquiescence by the international community.
In conclusion, acquiescence may constitute evidence reinforcing a title based upon effective
possession and control rendering it definitive.
5. LOSS OF TERRITORY:
Sovereign territory may not only be acquired, it may also be lost in ways that essentially mirror
the modes of acquisition. Territory may be lost by express declaration or conduct such as a treaty
of cession or acceptance of secession; by loss of territory by erosion or natural geographic
activity or by acquiescence through prescription. Further, territory may be abandoned, but in
order for this to operate both the physical act of abandonment and the intention to surrender title
are required.23
6. CONCLUSION:
The concept of territory under international law is a very important aspect, it is provided under
the Montevideo Convention that a state cannot become a state without a territory. Thus, the
discussion of territory is very imperative since a state cannot exist without a territory.
23 Malcom Shaw, Public International Law, 6th Edition at page 521

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International law 1&2 notes

International Trade Law (Uganda Christian University)

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Page | 1 INTERNATIONAL LAW 1 & 2

1. JURISDICTION PRIVILEGES AND IMMUNITIES:

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CIVIL AND CRIMINAL JURISDICTION

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The ‘objective’ application of territorial sovereignty refers to the exercise of jurisdiction by a

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Passive Personality Principle

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and those responsible.

True universal jurisdiction

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The story of Belgium’s endeavors to extend application of the universalityprinciple in its

2. IMMUNITY FROM JURISDICTION

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Origins: The Doctrine of Absolute Sovereign Immunity

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In applying this statement of principle, it was necessary to determinewhich entities were to be

The Restrictive or Qualified Sovereign Immunity Doctrine

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The Nature Test

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Personal status immunity

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THE ILC ARTICLES AND THE CHANGING DISCOURSE OF STATE

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INTERNATIONALLY WRONGFUL ACTS

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THE RULES OF ATTRIBUTION